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Family-based care has been the dominant form of placement for children taken into state care in Canada over the last century. While 47,885 children were reported to be living in foster care in 2011, (1) there have been many signs of a system both in transition and in crisis. (2) Some jurisdictions are experiencing a chronic shortage of families willing to act as foster parents and an overcrowding of children in existing homes. (3) Reports of critical or fatal injuries suffered by children while in foster care have also raised questions as to whether children are safer or better off in foster than in parental care, (4) and criticism of disproportionately high foster care rates for Indigenous children and in some locales, African-Canadian children, has intensified over the past decade. (5) At the same time, more foster caregivers are claiming the right to maintain children in their home or adopt them, prompting one Indigenous scholar to complain of a "foster care scoop". (6) Traditionally, foster parents have been seen only as temporary caregivers, contracted with and paid simply to provide physical care without having legal custody or the authority to decide a child's future. As I will demonstrate in this article, however, this temporary contractual status is increasingly challenged by or at odds with legislative reforms and judicial outcomes in some jurisdictions.

To date, very little has been written on the full range of legal issues arising from foster care in Canada. (7) I attempt to address this gap by canvassing the rights foster care providers currently have to challenge ministerial or agency decisions to remove children and return them to parents or to place them with kin or other foster or adoptive parents. I do not provide an analysis of all cases involving foster parents and child placement. Rather, I present a mapping or framing of the relevant legal issues and principles found in leading cases in common law provinces, with an emphasis on judicial outcomes in British Columbia, Alberta, Saskatchewan, and Ontario. Canvassing both statutory reforms and court-based challenges, I review rights to seek administrative review of agency or ministerial decisions with respect to child placements and rights to participate in proceedings or seek custody under child protection legislation as well as under other family law-related statutes. There is a complex interplay of statutes, particularly between child custody, adoption, and child protection, with a panoply of differences as one moves across jurisdictions. In addition, I briefly review the possibility of constitutional claims by foster parents under section 7 and section 35 of the Charter (8) through the practice of custom adoption.

The objectives of this article are largely descriptive: to provide a doctrinal analysis of the leading cases, to illustrate the substantial differences in legislative policy and judicial outcomes across jurisdictions, and to provide some insight into the underlying and competing values or concerns that might explain such differences. In Part II, I review the context for fostering, including the responsibilities, rewards, and trends in the delivery of foster care, which are plausibly linked to the emergence of and continuing pressure for enhanced legal rights. In what follows, I examine the grounds upon which administrative tribunals and courts may favour retention or resumption of care of a child by foster caregivers. I structure this discussion according to the legal avenues available for such challenges, identifying the advantages or disadvantages for foster parents in advancing the different claims.

The analysis of case law suggests that where foster care providers are able to advance claims to custody or guardianship, they typically rely on attachment or bonding with the child in their care to argue that removal of the child is not in the child's best interests. Given the disproportionate number of Indigenous children in foster care, many such disputes have raised issues regarding the significance of culture, ancestry, or racialized identity relative to that of attachment or bonding in a best interests assessment. (9) When subject to a best interests test, foster caregivers who have established secure longstanding relationships with children are largely successful in their claims. (10) Some child welfare agencies may favour policies recognizing cultural or race-based connections; however, with some notable exceptions, courts in most jurisdictions appear resistant to disrupting attachments that children have formed with their immediate caregivers over a lengthy period of time.

Yet, the case law survey also suggests that there are other apparently neutral legal categories or concepts that can have a decisive impact by finding that foster parents have or lack standing to even advance a claim. These outcomes depend on questions of statutory interpretation such as: how judges choose to characterize a legislative gap, where the doctrine of parens patriae may be relied upon;(11) or how they choose to characterize a statutory conflict where claims are made outside the scope of child protection statutes. The willingness of judges to rely on these characterizations in addition to assessments of a child's best interests or to construe them narrowly or broadly to favour a particular outcome appears to correlate with a number of factors. Such factors include: the statutory language; the stage of proceeding; the time spent in foster care; deference to the expertise of ministries or agencies and concerns with opportunism or strategic delays; the nature of the child's relationship with other disputants; the child's age, culture, community of origin, and wishes; the availability of openness agreements or access; the contractual status of foster caregivers or their desire to adopt from the outset of placement; and occasionally the views of birth parents. In applying or weighing these factors, however, we see substantial differences in statutory policy and case outcomes between jurisdictions, which I suggest reflects confusion or at least controversy regarding the underlying objectives of child protection. Also visible is increasing complexity, not only due to an increase in the number of potential disputants (including foster caregivers and kin relations) but also because attachment and racially- or culturally-based factors may be interconnected and both may favour one or more parties.

Of fundamental concern in resolving the scope of foster parent rights is the weight to be given to parental ties and interests, and those of kin relations, both independently and with regard to children's best interests. Where the care of Indigenous or racialized children has been at issue, the resolution of claims by foster care providers has also often had implications for the development of a positive racial identity and for cultural continuity and community survival. A normative evaluation of the many policy issues and options relevant to this subject would require an extensive empirical analysis that is beyond the scope of this article. In the conclusion, I highlight the most significant concerns that emerge from the case law survey, emphasizing the importance of the stage of proceedings and the drawbacks of multiple proceedings where claims by foster caregivers are made. I also briefly address other policy issues and options, including the impact of recent developments by the federal government regarding child welfare for Indigenous children and Indigenous nations and communities. (12)


As recognized by the Supreme Court of Canada, child protection proceedings frequently involve "already disadvantaged members of society such as single-parent families, aboriginal families and disabled parents". (13) Over a third of substantiated maltreatment investigations involve neglect as the primary category and neglect is significantly correlated with low income and the multiple stressors associated with poverty. (14) In Ontario in 2013, women were identified as the primary caregivers in 90% of all substantiated investigations. (15) In every province and territory, except Prince Edward Island, Indigenous children are overrepresented in the population of children placed in state care, mostly on grounds of neglect. (16) In 2011, almost 50% of children in foster care in Canada were identified as Aboriginal, even though Aboriginal children comprised only 7% of the child population. (17) These rates reflect the long-term destructive impacts of settler colonialism (the loss of traditional territories, political systems, and economies) and assimilationist policies (like residential schools and the Sixties Scoop that displaced traditional parenting practices and exposed children to cultural loss and high rates of abuse) (18) as well as federal funding formulas on reserves that have been found to favour child apprehension over prevention and discriminate on the grounds of race and ethnic ancestry. (19) Recent studies suggest that the overrepresentation of African-Canadian children in care in locales such as Toronto may also be linked to poverty as well as intergenerational trauma arising from colonialism, slavery, and ongoing racism. (20)

Whereas in past centuries, poor children were indentured as servants or apprentices or housed in poor houses, orphanages, residential schools, and asylums, a preference for formalized family-based care began to emerge in Canada in the late 1800s. In Ontario, foster care was believed to be less costly than institutional care and more likely to reduce the risk of disease, to provide individualized care, and to integrate children in communities. (21) However, as Chen notes, abuse was also more difficult to detect within the private sphere of the family and maintaining visits with parents often proved more difficult as well. (22) While many foster parents have provided loving care for children, the foster care system has too often exposed children, particularly Indigenous children in the latter half of the last century, to inadequate care, unstable and multiple placements, racism, cultural dislocation, and physical and sexual abuse. (23)

As indicated in Part I, the provision of foster care has also been beset by high turnover rates and a shortage of homes. (24) Currently, this shortage has been attributed to many factors including a reduced number of full-time homemakers (women) given the prevalence of dual wage-earning families, a lack of recognition and inadequate training and supports, more intensive demands due to an increase in children with special needs, and low compensation in light of these demands and intrusive state supervision. (25) In response to safety concerns and reports of abuse, standards for becoming a foster parent have become more onerous in recent decades. (26) Foster homes are generally supposed to be inspected and placements reviewed on an annual or more frequent basis. (27) Still, there are questions as to whether care is adequately monitored given high caseloads and high turnover rates in social services staff, as to whether homes are overcrowded, and whether foster care providers are sufficiently trained to appropriately manage school-aged children or those identified as having mental health or behavioural problems.

Foster caregivers are not government employees but rather contract independently to provide physical care for children who have been apprehended by child welfare authorities until they can be returned to their parents or moved to another placement. (28) Standardized agreements may contain obligations that call on the agency or ministry to provide information, training, and support; facilitate planning between birth and foster families; conduct reviews; and make regular payments. Foster parents in Saskatchewan are obliged under such contracts to ensure a child's safety and health; respect and facilitate children's relationships with their birth families and communities; and facilitate subsequent placements when required. (29) Foster parents provide daily care but, depending on the stage and outcome of child protection proceedings, either the parent or the agency (or society in Ontario) or the Crown (30) retains legal custody or guardianship. The contracts between foster parents and child welfare agencies or ministries will typically give their designate the right to remove a child where he or she believes the child's welfare or best interests require it. (31)

Over the last century, foster care has been provided largely by stay-at-home mothers in white, working-class, heterosexual families; (32) although efforts have recently been made to actively recruit more Indigenous foster families." Empirical studies suggest that most foster caregivers are motivated by altruism and a genuine desire to care for and assist children but require financial compensation in order to provide care. (34) In light of the onerous and intensive responsibilities undertaken by them, the financial rewards are modest. (35) Yet, relative to kinship caregivers, foster caregivers generally receive more subsidies and supports as well as more training and skill development. (36) Foster care providers also, unlike kin caregivers, have national, provincial, and territorial incorporated non-profit associations that address common issues, provide information, and lobby to advance foster parents' interests. As such, foster caregivers have been able to establish higher standards for their treatment by child welfare agencies including basic rights to receive relevant information, have input into placement decisions, receive support and reasons for the removal of a child, and have access to some form of review. (37)

The changing status of foster care providers is further evident in the increasing numbers who have adopted foster children. (38) A 2014-15 Ontario survey found that about 36% of a total of 659 children were adopted by foster parents. (39) Higher adoption rates by foster parents have been encouraged by state subsidies, and some agencies have also specifically recruited foster caregivers who wish to adopt as part of planning permanency options for children taken into care. (40) Proponents of fostering to adopt programs argue that a child who is ultimately not returned to parents or kin can remain with the foster family long-term and benefit from enhanced attachment security. (41) For prospective adoptive parents, fostering may avoid long waiting lists (especially for younger children), reduce legal costs, and provide both an income prior to formal adoption and an opportunity to "try out" life with different children. In light of diminished opportunities for adoption, domestically and internationally, (42) fostering may provide a way of circumventing much of the adoption process and its costs. However, foster caregivers who are primarily interested in adoption rather than ongoing fostering may be less engaged in facilitating reunification with parents or kin and less restrained in challenging the removal of children from their care.

In practice, foster care providers will most often obtain custody or adoptive status with the consent of the director or minister. Questions regarding their legal status will generally arise only where the foster parents' position is at odds with that of the agency, and even where express rights to review exist, there may be practical constraints such as high legal costs (since foster caregivers, unlike parents, have no constitutional right to counsel in child protection proceedings). (43) For those financially dependent upon fostering, challenging placement decisions may also displace current funding and jeopardize future placements. (44) In addition, an agency's ability to remove a child from foster care in the course of legal proceedings may work against the child's return to the foster caregiver.

In Part III, I review the various legal avenues through which such challenges arise and are resolved.



Child protection statutes exist in every provincial and territorial jurisdiction in Canada. Such statutes establish standards and processes which govern the removal of children from the care of their parents or custodians and authorize their placement in the temporary or permanent legal custody of the Minister or other parties. While protecting the well-being of children is a paramount objective of all such statutes, the preservation of parental and family ties has generally been presumed to be in a child's best interest in the absence of a minimally acceptable standard of care. (45) For this reason, child welfare agencies can only apprehend children if they are in need of protection and at substantial or serious risk, and not simply because a worker believes they may be better off in the care of third parties. (46) It is also typically incumbent on workers to provide services and seek the least disruptive alternative to removal of the child. (47) The Saskatchewan statute emphasizes family preservation and is expressly intended to "promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner." (48) Statutes in other jurisdictions, such as Ontario, British Columbia, and Alberta, have emphasized child safety and children's rights to a greater extent but still identify family preservation as a secondary objective or as a guiding principle or mandatory consideration that can serve a child's best interests. (49)

These provisions are consistent with the Supreme Court of Canada's recognition of a fundamental interest that both the parent and child have in preserving their relationship. (50) According to Lamer CJ in New Brunswick (Minister of Health and Community Services) v G (J), "[a]s an individual's status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct." (51) Both the parent's and the child's right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms (52) is at stake in child protection proceedings: "[s]ince the best interests of the child are presumed to lie with the parent, the child's psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship." (53) In Winnipeg Child and Family Services v KLW, L'Heureux-Dube J, writing for the majority, likewise noted that "[u]nnecessary disruptions of the [parent-child] bond" can cause "significant trauma to both the parent and child", (54) and Arbour J in dissent identified a child's interest both in "being protected from harm and... in a continuing parental relationship". (55) Both parent and child have a right not to be deprived of such rights except in accordance with principles of fundamental justice and such a deprivation is not "easily saved" under section 1 of the Charter. (56)

Under all child protection statutes in Canada, the removal or transfer of custody of a child from his or her parents must be judicially authorized based on a finding that a child is in need of protection. (57) If such a finding is made, the court must then determine what type of order is in the best interests of the particular child, again in light of factors identified by statute. A court may order that the child be returned to his or her parents with or without a supervision order, be placed in the care of third parties, or be placed either temporarily or permanently in the care and custody of the minister, director or agency. Temporary or permanent custody or guardianship orders are variously described across jurisdictions, for example, as interim and extended society care orders in Ontario and as temporary and continuing custody orders in British Columbia. Children may be placed in foster care at any point in this process--in the immediate wake of the apprehension of a child, in the course of court proceedings, or thereafter, when a child is in permanent or extended care.


Child protection statutes differ across jurisdictions in terms of whether they expressly provide foster caregivers with rights to have input into or contest agency decisions concerning placement. In the absence of express rights, foster parents have often sought to rely on a superior court's parens patriae jurisdiction, or its inherent authority to make orders protecting children's best interests where they can allege a gap in the legislation or can establish bad faith, denial of procedural fairness, arbitrariness, capriciousness, or an improper exercise of a ministry's or agency's discretion. In Beson v Director of Child Welfare (Nfld), (58) the failure to investigate and substantiate allegations of abuse before removing a child from his preadoptive parents constituted a denial of procedural fairness. The Supreme Court also noted that the adoption statute in question did not allow for an appeal to an adoption appeal board by the applicants and identified this omission as a gap or deficiency that allowed the court to make such an order under its parens patriae jurisdiction. (59)

Where foster care providers lack express rights by statute to administrative review, one might expect claims reliant on parens patriae to have a greater role. Courts in some jurisdictions, however, have strongly resisted foster parent applications and narrowly construed their parens patriae powers and those of judicial review. In Nova Scotia (Community Services) v NNM, (60) the Court of Appeal denied the foster parents' claim of procedural unfairness where the children were permanent wards and had been in their care for almost 15 months. According to Hamilton JA, the process of selecting adoptive parents was not a judicial process and did not require that the Director disclose information or meet with foster parents to give them input into the selection process. "The scheme of the [CFSA] providing a broad discretion to the Ministry of Community Services [MCS], equivalent to that of a parent, limited rights to foster parents and strict time limits for dealing with children, indicates minimal procedural rights for foster parents." (61) In rejecting a claim to a legislative gap, Wooder J in HC v New Brunswick (Minister of Social Development) also noted:
There is no material gap in every instance where the legislation
differentiates between different groups in different situations or
where legislation in this province is not identical to legislation in
another jurisdiction. Nor is there a gap because the Act does not
provide for every procedural or substantive matter which counsel
proposes is critical to a consideration of the issue faced by the
court. (62)

This position is consistent with the Nova Scotia Court of Appeal's analysis in Nova Scotia (Community Services) v TG, (63) where a foster parent sought to adopt a child and argued that the Director's preference for a kinship placement constituted bias. Fichaud JA held that the legislature was entitled to prioritize criteria relevant to a child's best interests and that prioritizing "racial compatibility and sibling cohesion" was not evidence of bias, but rather evidence of adherence to law as expressed in the Act. (64) He further held that enhanced participatory or procedural rights and claims of bias by foster parents would generate perverse incentives and interminable delays, which could be used opportunistically by them to strengthen a child's attachment and enhance their claim as to best interests.

Where some form of challenge by foster parents is expressly allowed, statutes differ across jurisdictions in the extent and type of challenge that can be launched. In Saskatchewan, foster parents merely have a right under the ministry's policy manual to request an "independent adjudicator", (65) and under regulations in British Columbia, foster caregivers may request that the director appoint a "review authority". (66) In either case, while adjudicators may investigate and make recommendations, the final placement decision remains with the director or minister, in the absence of an application for judicial review. In Alberta, foster parents may seek a review of a director's decision to remove a child from their care and if dissatisfied with the review, may appeal to a panel that can then refer the matter back to the director for "further consideration." (67) While the panel cannot directly vary the director's decision to remove a child subject to a temporary or permanent guardianship order, the Alberta Court of Appeal in RP v Alberta. (Director of Child, Youth and Family Enhancement) (68) found that the director can decide differently than the panel only after "expressly considering the fact findings, conclusions and decision made by [the panel]", "expressly addressing the interaction of those findings and conclusions with any relevant new evidence", "expressly considering each of the s 2 [statutory] factors", and then "giving articulate clear, defensible and acceptable reasons" for his or her own preferred conclusion. (69) The panel's factual findings, in other words, cannot be ignored and its decision can be varied only if shown to be unreasonable.

On the facts in RP v Alberta, the panel had disapproved of the director's decision to remove a 4-year-old child who had been placed at birth in a foster-to-adopt home and then made subject to a permanent guardianship order. According to the Court of Appeal, the Act required a consideration of all factors and the director had wrongly prioritized maximum contact with the child's Aboriginal grandmother who had care of her two siblings above or at the expense of other factors, such as the desirability of preserving the child's bond with "the only family she has ever known". (70) The appeal panel's finding that the child would suffer "severe trauma, grief and loss" (71) if her attachment to the foster parents was disrupted elevated their claim over that of the grandmother, particularly where the "child's ancestry is only one-quarter Cree" (72) and where the foster family identified as an Aboriginal family. (73) Bielby JA believed that the relationship with the child's Cree family and culture could be developed and sustained through access rights granted to the grandmother in the adoption order. Granting access to the foster caregivers, however, was not expressly considered by the Court of Appeal as an option, nor were the relative abilities of each family to make the 500 kilometre round trip. (74)

When the director failed to reconsider his position, a Queen's Bench judge subsequently found that this failure or refusal presented an "uncontemplated" situation, (75) which allowed the court to rely on its parens patriae jurisdiction and issue an adoption order favouring the foster parents. (76) Arguably, however, what Renke J characterized as a failure to reconsider, and thereby a legislative gap, amounted to a profound disagreement as to the weight to be accorded to the relative claims of the foster caregivers and the Aboriginal grandmother in assessing the child's best interests. This privileging of continuity of care over culture or ancestral connections has also been endorsed by the Supreme Court and noted in Ontario jurisprudence.(77) Although the Ontario CYFSA requires consideration of a child's connection to community as well as culture and prioritizes customary care placements, (78) courts may still be more disposed to finding a legislative gap where a child who is subject to a permanent order has been securely established in long-term care.

In contrast to the above jurisdictions, foster parents in Ontario and Manitoba have more fulsome rights of appeal to independent administrative tribunals. (79) In addition to participatory rights in child protection proceedings themselves, to be discussed in the next section, foster parents in Ontario who have had continuous care of a child in extended (permanent) custody for two years have a right to advance notice of a proposed move, their wishes must be taken into account upon removal, and they can apply to the Child and Family Service Review Board (CFSRB) or to a court for a status review. (80) Pending the outcome of a review, the child must remain in the care of the foster parents unless "there is a risk that the child is likely to suffer harm". (81)

Foster parents may also apply to the CFSRB where the minister has refused to consider them for adoption, even where the child has not lived with them for any specific period of time. (82) Under this section, the Board has broad authority to determine what is in a child's best interests and may confirm or rescind the minister's decision. (83) Decisions of the CFSRB are subject to judicial review on grounds of procedural unfairness or generally on grounds of unreasonableness. (84) A reasonableness standard suggests that courts should tend to defer to the expertise of the CFSRB regarding a child's best interests; (85) however, courts have overturned Board decisions and disrupted kin placements where foster caregivers have had long-term relations with a child. (86)

The Ontario provisions attempt to balance the rights of parents, foster parents, and other claimants and in doing so, offer substantial advantages for foster care providers. Since the child cannot be removed from their care during a review, attachments will be enhanced and the foster parents will presumably not suffer an income loss that could jeopardize their ability to provide care. The legal costs of proceeding before the CFSRB, a more informal adjudicative setting, may also be far less than would be the case if they had to proceed with a court application. Further, the CFSRB has significant powers to review and vary the decision of a society in terms of what the Board believes are in the best interests of a child. (87) However, these provisions may also protect the rights of parents and kin to a significant degree. Unless adoption is at issue, foster parents must have had care of a child for at least two years and they cannot contest placement through the CFSRB prior to the extended committal of the child. In the case of adoption, a foster parent's claim would be subject to parental consent unless the child is in the extended care of the agency or Minister, at which point the potential claims of parents and kin have usually been exhausted.

In light of extensive rights to administrative review, among other provisions, Ontario courts have generally refused to invoke their parens patriae jurisdiction and have viewed their Act as an exhaustive code. According to the Court of Appeal in C (G) v Catholic Children's Aid Society of Hamilton-Wentworth, (88) foster parent rights had been "carefully circumscribed" in order to "prevent the foster parents from potentially acquiring an advantageous position to that of the natural parents." (89) As such, they were limited to the review mechanisms and participatory rights expressly provided for and could not claim custody under another family law statute, the Children's Law Reform Act. (90) In L (R) v Children's Aid Society of the Niagara Region, the Ontario Court of Appeal also rejected the foster parents' claim that a delay of more than two years took the parties outside the ambit of the CFSA. (91) While CG v CAS of Hamilton-Wentworth has generally been followed, a few subsequent cases have sought to distinguish it "where the society has not acted fairly or otherwise met the needs of children" (92) or where fundamental principles of procedural or substantive justice (e.g. a lack of notice to a birth parent) had not been adhered to. (93)

In Manitoba, foster caregivers gained significant rights under amendments introduced in 2002, when the province created four authorities to provide services to First Nation and Metis families. Under the Child and Family Services Act, (94) foster parents have a right to give testimony in protection proceedings, (95) may retain their own counsel and apply for guardianship, (96) and may also appeal the removal of a child where the ministry is the guardian. (97) As in Ontario, legal representation is not necessary during this process; the child must remain in their home pending appeal subject to some exceptions; (98) and the child can be returned "in a foster relationship", (99) that is, presumably with subsidies maintained. According to Steel JA in First Nations of Manitoba Child and Family Services Authority v Manitoba (Minister of Family Services and Housing), (100) these provisions were intended both to advance the best interests of children and provide foster parents with due process. Moreover, in her view, "there is nothing preventing the appeal provision from operating at the same time as protection or guardianship proceedings." (101) As such, an administrative review could be sought even where the agency formerly had temporary guardianship but had returned the children to their parents. Although all parties agreed that it was no longer in the children's best interests to be placed again with the foster parents, the decision clearly suggests that this could occur where seen by an adjudicator to be in their best interests.

Unfortunately, the specific policy implications of such an outcome were not addressed in this decision. The Court apparently endorses proceedings in both administrative and judicial forums without explaining how inconsistent outcomes regarding a child's best interests will be resolved. Parents do not appear to have a role in the administrative review. One then wonders how a best interests analysis in the review process can be consistent with the general requirement that a child must be in need of protection for the minister to retain guardianship, particularly where the agency believes that is no longer the case.

It also seems odd that a major legislative overhaul designed to give First Nations and Metis authorities more control over the delivery of child welfare services would end up diminishing their power to return children to their parents. (102) Courts traditionally have lacked the statutory authority to order agencies to apprehend children or to keep them in care rather than return them to their parents. As such, this decision clearly acts as a check on an agency's discretion and on efforts towards family reunification. Given indications on the facts that the foster parents "had not cooperated with the family reunification visits" and the police had to be called on one occasion to force compliance, (103) the case also raises concerns as to whether enhanced rights for foster caregivers will increase the potential for non-cooperation with parents or kin.

In the next section, I canvass applications by foster parents for custody or guardianship in the course of child protection proceedings.


Statutes in many jurisdictions have specific provisions that allow for placement of a child with or in the care and legal custody of non-parents at some stage of a child protection proceeding. (104) Whether foster caregivers can qualify as non-parents, participate at some stage of proceedings, and compete with parents or kin for legal custody depends upon judicial interpretations of the relevant statutory language. Even with express rights, however, these applications can be difficult to pursue without ministry or agency support since applicants may not be able to retain care of the child pending court outcomes, may lose their stipend and be less able to afford legal assistance, and be unaware of the need to advance their claim in a timely way. (105) Even with such support, any custody order obtained under this or another statute may be subsequently challenged upon a change in circumstance by the parents (if they gain stability) or kin relations. However, relative to proceedings under other family law statutes, to be discussed in the next section, the child protection context may afford greater attention to relevant policy objectives and impacts and better information regarding the child's history before and while in care. The most significant issue in the child protection context, however, is whether or at what stage of proceedings foster care providers should be entitled to pursue custody on their own behalf.

Courts in Ontario have traditionally held that foster parents should not have a direct role in child protection proceedings until a finding that a child is in need of protection has been made. In an oft-cited decision in Children's Aid Society of Metropolitan Toronto v S(D), (106) Nasmith J disapproved of foster parents having standing or being added as parties to the initial protection application. He stated that at the "investigative" or "assessment" stage, the foster parents:
... should be preparing the child for a return to the family. Until it
has been determined that there are grounds for removing the child from
the family and that there is no one in the family who is acceptable as
a substitute caretaker, the foster parents cannot be putting forward
their own resources as being "better" than the family's or calling for
a comparative analysis of plans as between themselves and the family.
Before removal from the family has been justified, foster parents
cannot have status to compete for the child and to argue "attachment"
or "better resources[.] (107)

If claims could be advanced as to the best interests of a child before this stage, Nasmith J believed that conflict between foster parents and the agency would become more "commonplace", (108) undermining "the principles of family integrity, rehabilitation or... priorities for family placements". (109) The Court of Appeal in RL v CAS of Niagara (110) likewise characterized foster parents having an interest in adoption prior to a protection finding as "risk foster parents" who provide temporary care and cannot be compared to the original family. (111) According to Nasmith J in S(D), foster parents can be considered for permanent custodial or adoptive status once the child is made a ward "either temporarily or permanently", although "until the two years have passed or until a permanent wardship order has been made, the possibility of reconciliation with the original family should not be lost sight of." (112)

Provisions allowing a court to make custody orders to non-parents upon finding a child in need of protection were put in place in Ontario in 2006. Such orders are deemed to be orders under the Children's Law Reform Act (CLRA), thereby avoiding the need for proceeding under that Act and potentially allowing for their recognition in other jurisdictions. (113) Under both the former section 57.1 and what is now section 102, foster parents were and remain expressly excluded from the category of persons to whom custody may be granted. (114) Foster parents are not identified among those who may apply for status review of supervision or interim society care orders, but foster parents having had care of a child for two years are expressly able to apply for and be granted custody after a child has been subject to an extended society care order. (115) Subsequent decisions and statutory reforms in Ontario have augmented the procedural and substantive rights of foster parents. Even before a protective order is granted, those having cared for a child over the previous 6months have express participatory rights: to notice of the hearing, to be present and represented by a solicitor, to make submissions, and to seek other rights with leave of the court. (116) The latter have included rights to pre-trial disclosure; participation in pre-trial proceedings; the right to call, examine, and cross-examine witnesses; and full party status. (117) Factors relevant to determining more expansive rights have included: the child's best interests; the prospect of undue delay; (118) whether the applicant has a plan and a legal interest in the proceedings; (119) the age of the child; duration of the foster placement and time line considerations; whether there has been a finding of need for protection, (120) and whether the "foster parent's involvement would [inform or] clarify the best interests of the child." (121) Recently, in an application by a foster-to-adopt mother for party status, the Ontario Court of Appeal also identified as relevant whether the society had changed course after approving the foster parent as a pre-adoptive parent, whether the child was represented by counsel, whether the parents were able to regain custody and the nature of the foster parent's interest in the proceedings. (122)

Courts have also recognized that foster parents may have substantive interests that are congruent with an agency's application for permanent or extended wardship if they wish to adopt and have the support of the agency in doing so. The Supreme Court of Canada held in Catholic CAS of Metropolitan Toronto v M(C) (123) that an important factor in determining whether a child remained in need of protection on a status review application and in identifying his or her best interests was the psychological bonding of the child with a foster family. The emotional well-being of the child was of "utmost importance" (124) and the finding of whether a child needed protection was not to focus exclusively on the ability or deficiencies of the parent but could also be based on the likelihood of adverse consequences for the child arising from separation from a foster family having had long-term care of the child. The Ontario Court of Appeal in AM v Valoris pour Enfants et Adultes de Prescott-Russell appeared to further recognize a distinctive interest on the part of foster-to-adopt parents, given a "clear understanding between the Society and foster-to-adopt parents... that children are placed with them with an ultimate goal of adoption." (125) The Court granted the "F-A mother" party status and found she had a legal interest in being able to testify and in not foreclosing the possibility of Crown wardship, followed by adoption. (126) However, how the foster parent's expectation or understanding at the outset of the child's placement was relevant to the statutory objectives of child protection either in terms of best interests or family reunification was not addressed.

While the appeal court in AM v Valoris appeared to assume that a custody order in favour of a foster mother could not be made before Crown wardship (now an extended society care order), (127) in Family and Children's Services of Guelph v CM, O'Dea J granted a foster parent custody in such circumstances under paragraph 65(1)(d) (now paragraph 114(d)). (128) This paragraph expressly allowed a section 57.1 order but did not itself expressly exclude foster parents. According to O'Dea J, "[h]ad the Legislature intended to continue the foster parent exclusion [in section 57.1]... at the expense of best interests, it would have specifically said so in clause 65(1)(d)." (129) As such, he rejected the Children's Aid Society's argument that a foster parent could only obtain custody of a child in its care through a Crown wardship order (and thereafter through administrative review) (130) and even suggested it may not always be necessary to await a status review application. (131)

Indeed, Justice O'Dea also noted in obiter that the removal of the child from the foster mother pursuant to a risk investigation at one point amounted to an "apprehension", triggering the need to bring the matter back before the court within five days: (132) "Read as a whole, a foster parent is 'a person having charge of a child' for the purposes of a risk investigation and she should be treated as any other person having charge of a child in the event a society deems it necessary to remove a child from his or her care." (133) Such a position greatly expands the standing of foster parents, ignores the society or Crown's status as lawful custodian, and appears inconsistent with provisions that allow administrative review of placement decisions only where the child has been in the care of a foster parent for two years.

In this case, CM had applied to foster only with a view to adoption and was initially told by a worker that the child's placement with her was likely to be long-term. While the society ultimately wished to place the child with paternal grandparents who had custody of her brother, CM argued that the child had by then, over the course of almost but not yet two years, (134) attached to her and would be at risk of psychological trauma if removed from her care. O'Dea J commented:
In response to the permanency planning principles, societies are
placing children in "foster-to-adopt" homes earlier and earlier in
proceedings, including protection proceedings. These decisions lead to
very predictable results: parents and families and judges lose trust in
a society's readiness to honestly adhere to the principles enunciated
in subsections 1(2) and 57(3) and (4) [provisions that require
consideration of less disruptive options] and foster parents ate given
an often false sense of hope that they will soon be adopting a child.

In his opinion, only short-term placements should be made after an apprehension and clear guidelines should be established regarding information given to a foster-to-adopt family. On the facts, CM was found to have "delayed commencement of access and independent visits [by the paternal grandparents] out of self-interest, not best interests." (136) However, notwithstanding the finding that she had prioritized her own "long-term goal of securing permanent placement", (137) the child was placed in her custody because of attachment concerns and the unwillingness of the paternal grandparents to deal with such concerns given their "visceral dislike of [her]". (138)

Unlike Ontario, child protection statutes in most other jurisdictions do not extensively provide for foster parent rights. In Saskatchewan, a judge may designate a person of sufficient interest (PSI) under The Child and Family Service Act if one qualifies as an extended family member; the chief of the band to which the child is or is entitled to be a member; or a person "who in the opinion of the court has a close connection" with the child. (139) While this provision may have been originally intended for extended family or community members, foster caregivers have also relied on it. (140) The finding of a close connection in the designation of a PSI is a discretionary matter, to which factors such as the length of time in care, the nature of the proceedings, potential delays, views of the parents, ministry, and the child, and his or her best interests are relevant. (141) A PSI will have full party status and if a child is placed in his or her custody, a PSI will be able to make decisions on behalf of the child and, subject to the order, need not provide information to or otherwise cooperate with the ministry. (142) The status of such orders, however, upon relocation to another province or when subject to conditions such as annual reviews, is unclear. (143)

In the case of Re SC, (144) non-Indigenous foster caregivers had had care of a child of Indigenous ancestry since she was eleven months old and wanted to adopt her. The child was three years old when they sought status as PSIs prior to the trial on whether the child was in need of protection. (145) The father and the ministry did not oppose their application and the mother was not present. However, the child's grandmother, who desired custody and had been designated a PSI, argued before the chambers judge that "introducing new parties, in particular the foster parents... [would] ultimately impede one of the primary goals of the Act, which is reunification of families", (146) and would prolong and complicate proceedings contrary to the interests of the child and the family. (147) In granting and then affirming PSI status for the foster parents upon appeal, neither level of court addressed the substance of these arguments. The chambers judge noted that the foster parents had "treated her as their own child" (148) for two out of her three years, (149) and supported "reunification of the family, if that [was] possible." (150) However, it is not clear what the prospects for reunification with the parents were on the facts, nor what impact their opposition would have in a future case.

While the minister argued that a PSI designation simply provided "party status", the Court of Appeal found that such a designation could have both "legal and practical implications" including not only disclosure of confidential information and participation in pre-trial conferences and the trial, but also the potential establishment of a "longer term relationship." (151) However, instead of dealing with whether PSI status for foster parents at this stage was inconsistent with the Act's objectives, the court focused on whether the language of the relevant statutory provision was broad enough to allow for an application to a chambers judge before trial. Finding that this was the case, the court was then unable to find that the chambers judge was clearly wrong or had failed to act judicially in applying the close connection test to the foster parents. (152)

The decision in Re SC has the potential to enlarge the rights of foster caregivers vis-a-vis parents and extended family members. While the length of time a child is in their care will always be relevant, the primary threshold criteria of close connection could conceivably be met by foster parents, even after six months. Such an outcome raises concerns that the involvement of foster care providers prior to even establishing at trial that a child is in need of protection will undermine trust and efforts at family reunification, contrary to the Saskatchewan Act's objectives.

In Nova Scotia, by contrast, while foster parents can obtain notice and leave to apply to terminate a permanent care order, they are not "routinely" granted status as parties before a permanent care order is in place. (153) In TG v NS, the court indicated that "[b]efore permanent care, the CFSA contemplates a primary effort to reunite the child with the natural parents, an objective that would be thwarted if foster parents could seek permanent care on their own behalf." (154) Notably, the Nova Scotia statute minimizes delays (and the potential for attachment) by limiting the total duration of orders prior to a permanent order to a maximum of twelve months.

Although New Brunswick has much looser timelines under its Family Services Act (155) than Nova Scotia, applications by foster parents in New Brunswick have also been "severely limited, if not precluded, until such time as a court has granted guardianship [permanent care] to the Minister." (156) This outcome preserves what Rideout J described as a fiduciary relationship between foster parents and the society which prevented the former from obtaining a personal advantage from their relationship with a child. (157) In HC v New Brunswick (Minister of Social Development), (158) Wooder J also refused a foster parents application for adoption under the Family Services Act given a finding that the minister had the exclusive power to select foster parents, transfer custody to them and consent to adoption after a guardianship order: "Effectively, the applicant wants the court to re-write the deal into which she entered and, in the process, re-write the Act." (159)

However, in British Columbia, foster caregivers will confront obstacles to challenging the Director's authority even where a continuing custody (i.e. permanent) order has been issued under the Child, Family and Community Service Act (CFCSA). (160) In Perteet v British Columbia, (161) the Court of Appeal denied an application by foster parents under the previous Family and Child Service Act (162) to seek custody of a child removed from their care by cancelling the permanent order in favour of the superintendent. Notwithstanding a provision that preserved the parens patriae jurisdiction of the court, the legislature had "clearly intended" that the superintendent had the sole power to determine the best interests of permanent wards and had limited who could challenge continuing custody orders. (163) While the CFCSA now allows the director to apply to transfer permanent custody to "a person other than a parent" before or after a continuing custody order (164) and allows foster caregivers to apply directly for access, (165) applications to cancel such orders remain available only to the director, parents, other designated First Nations representatives, or to those who were parties to the proceeding in which the original order was made. (166) Reasons cited for highly restricted rights include contractual terms which allow the director to remove a child at any time and the desire to enhance certainty and avoid delays through litigation. (167)

A concern with undermining the director's mandate or authority was also evident in an earlier Manitoba case but with contrary results. In MAF v Child and Family Services of Winnipeg Southeast, (168) a foster parent was allowed to apply for guardianship where the 3-year-old child had not been apprehended or found in need of protection but had been in the ministry's custody as a result of successive voluntary care agreements since shortly after birth. (169) Little J noted that such agreements are more commonly used in Aboriginal communities as a way of building trust. The agency had argued that allowing the application would give agencies an incentive to move a child more frequently in order to avoid the formation of bonds or could be used to circumvent the requirement of a finding of a need for protection. Little J found these arguments unpersuasive as agencies were required by law to act in the best interests of children, and applications by foster parents were rare given "[t]he emotional and financial risks to embarking on an uncertain and contested litigious course." (170) He did believe that the erosion of parental trust in the system was of concern, especially in Aboriginal communities, "if roadblocks to reunification of a child to family or community become commonplace." (171) However, he opined that trust can never be "absolute or universal" as agency work is always subject to a child's best interests, to which bonding is relevant. (172) The Child and Family Services Act gave "any adult" the right to apply and could therefore be relied upon. (173)

In addition to identifying the stage of proceedings as a relevant issue, there is also an issue as to whether a court must consider placement with extended family members before making a protective order or considering claims by foster caregivers. The Saskatchewan case of Re SC suggests a narrow interpretation of "family" reunification which does not embrace the extended notions of family that are common to Indigenous cultures. (174) By contrast, the Ontario statute requires that courts consider placement with a relative or community member prior to making a temporary or permanent order. (175) In Alberta, foster parents having had continuous care of a child for 6months are entitled to notice of a hearing, may make representations to the court, and may apply for private guardianship (subject to the director's consent, unless dispensed with) under the Child, Youth and Family Enhancement Act (CYFEA). (176) However, in KVW v Alberta, (177) the Court of Appeal overturned a protective order made by a trial judge who believed continued care by the foster parents was in the child's best interests relative to care by an extended family member. In this case, the child had been apprehended upon birth and placed with foster-to adopt parents who had adopted the child's biological brother. The child's aunt then applied for private guardianship under the CYFEA with the consent of the birth mother. According to Fraser JA, "[t]o answer the question whether an individual child is in need of protective services, a court must look not only at the legal guardian and his or her capabilities but also at any arrangements the legal guardian has made for the custody, care and supervision of the child in question." (178) If the selected guardian is fit as of "the date of the first full hearing on notice to affected parties", the child is not in need of protective services. (179) Moreover, the delegated guardian need not "establish that he or she is better than any other parents the state might find", (180) only that he or she is "a fit parent whose guardianship would not result in the child being in need of protective services and that private guardianship is otherwise in the child's best interests." (181) This approach was found to be most consistent with promotion of the family unit under the Alberta Act and with efforts to limit public expenditures.

Since the aunt's application had to be considered first before the director's application for wardship, evidence of an attachment between the foster caregivers and the 2-year-old child was irrelevant. While this decision prioritizes the claims of kin and gives parents the ability to choose caregivers for their children prior to a protective order, it may also curtail efforts at reunification in cases where parents are still struggling to overcome difficulties. It places a tactical burden on parents to either consent to kin guardianship applications before a protective order is made or face the prospect of a contest involving foster parents.

In summary, the rights accorded to foster care providers to participate and claim custody or guardianship in child protection proceedings vary considerably across provinces, reflecting differences placed on uncertainty and delay, attachments, and on family reunification and kinship relations. In British Columbia, foster caregivers appear to have the most limited rights. In Nova Scotia and New Brunswick, foster parents can generally seek custody only after a permanent order has been made, and in Alberta and Ontario, foster parents generally lack standing before the need for protection is established. The importance of the stage of proceedings reflects the significance of efforts towards family preservation or reunification under child protection regimes until a permanent order is made. Yet in Ontario, one also sees a trend towards increasing participatory rights for foster parents. Courts in Saskatchewan and Manitoba, both jurisdictions with highly disproportionate numbers of Indigenous children in care, may have granted foster parents the most extensive rights of any jurisdiction, driven largely by concerns with disrupted attachments. According to Re SC, a foster parent could apply for status before the first hearing and in competition with an extended family PSI, and in Manitoba, foster parents pursuant to voluntary care agreements have been granted standing to apply for guardianship. Arguably, it is within these jurisdictions that foster parent rights should be more highly scrutinized, given their highly disproportionate rates of foster care for Indigenous children, broad Indigenous conceptions of family, and the importance of preserving Indigenous communities and displacing their deeply tooted mistrust in child welfare institutions. In most jurisdictions, however, courts appear to be more cognizant of the child protection system's mandate when claims are made under such statutes rather than under separate statutes, to which I now turn.


Foster caregivers would generally look to separate custody or adoption statutes where there has been a falling out with the ministry, where their home has been closed, or where they had failed or were unwilling or unable to apply for relief under the child protection statute itself. In some of these circumstances, the applicants are more accurately identified as former foster parents since by choosing to seek to retain or obtain custody, they are not likely being paid by the society or ministry nor subject to its supervision or surveillance. These applications may also be expensive for foster care providers and less likely to succeed if the child has been removed from their home during the process.

Applications in this context raise complex questions as to the interplay of several statutes or statutory provisions and again reflect substantially different outcomes across jurisdictions. Although both child protection and other family law proceedings ultimately exist to protect the best interests of children, the former is designed specifically for the protection of children and at least secondarily, the child's parental or familial relationships which are generally presumed to benefit children. (182) By contrast, general applications for custody or access as between parents and other parties, when granted standing, are governed only by a court's assessment of the best interests of the child. Under child protection statutes, a court must find that a child is in need of protection before making a disposition order in accordance with the best interests of the child. In contrast, in general applications for custody or access, if private individuals such as extended family members or those with a close connection to a child are granted standing, outcomes are governed only by a court's assessment of the best interests of the child. In some jurisdictions, like Saskatchewan, courts take the position that these statutes should if possible be read together as part of a comprehensive scheme dealing with children's best interests. (183) In cases of direct conflict, however, a child protection order will have priority over an order previously made under provincial family legislation or under the Divorce Act given the interpretive rule that a specific statute exercising a protective mandate will prevail over a general one. (184) In other circumstances, questions arise as to whether concurrent or consecutive proceedings are known to each court, and if so, whether the statutes are in conflict and whether both proceedings should be consolidated or one stayed. In the specific case of foster parents, there are further questions as to whether general custody or adoption statutes contemplated actions by them, whether the source of the connection between the child and the foster parents is or should be relevant, and if so, in what way.

From a procedural standpoint, the desirability of a separate custody application carried more weight when child welfare statutes did not widely allow for placements in the custody of family members or PSIs either before or after a protective order. Since many child protection statutes now allow for custody or private guardianship orders, such proceedings, once a protective order is made, may generally provide the most expedient way of resolving issues, assuming parents, kin and all other interested parties are given notice and a meaningful opportunity to advance claims. At that point, courts will typically have direct evidence of any investigations conducted by the agency such as home studies. Funded programming and financial supports may also be accessed and legal aid may be exclusively available to parties in child protection proceedings. (185) Although non-parents who distrust the child protection system may wish to avoid the potential for monitoring by such authorities, general custody proceedings place a high burden on litigants who must bring forward evidence and pay the costs of litigation. (186)

In Ontario, applications initiated under the Children's Law Reform Act (CLRA) will be stayed upon commencement of a child protection proceeding unless leave of the court is granted under that Act. (187) In Saskatchewan, the reverse is true, that is, proceedings under the CFSA are presumptively stayed, at least until a voluntary committal or permanent order is made and a child has been placed for adoption. (188) However, in GL v Saskatchewan (Minister of Social Services), (where grandparents applied under The Children's Law Act, 1997 (CLA) as PSIs for interim custody of one child while child protection proceedings were also underway), Megaw J refused to consolidate the proceedings or to stay the CFSA proceeding. (189) According to the judge, this application ran "directly contrary to the Ministry's application under the CFSA" and "the Acts do not exist to provide different strategies for dealing with children." (190) Home studies had been completed under the CFSA, the child's siblings had been placed under that Act, and the grandparents could participate and seek custody under that statute as PSIs. As such, the court refused to grant relief under the CLA.

Whether foster parents, whose care of and connection with a child originates in the child protection system itself, should be able to initiate custody or adoption proceedings is a separate issue. Their ability to do so currently depends in large part upon the specific statutory language and on the availability of an administrative review process under the child protection statute. In Ontario, as a result of CG v Catholic Children's Aid Society of Hamilton-Wentworth, (191) claims by foster parents have generally been limited to administrative review mechanisms or other participatory rights provided for under under the child protection statute itself. Viewing the CYFSA as an exhaustive code would also preclude claims by foster parents to adoption, which is regulated under the CYFSA and allows for a review by the CFSRB where a foster parent's application for adoption has been refused. (192)

In light of the decision in LM v British Columbia (Director of Child, Family and Community Services), (193) foster caregivers in British Columbia appear to be unable to advance a separate claim for adoption of a child under a continuing (permanent) custody order without the Director's consent. In this case, the foster parents, with the support of the birth parents, challenged the Director's decision to place the child in an adoptive home in Ontario with two of her biological siblings. They argued that the court should exercise its power to dispense with the Director's consent and find that adoption of the child by them was in her best interests. (194) While the child and one of the foster caregivers was Metis, the proposed adoptive parents were not of Metis ancestry but were prepared to expose the child to that culture. The court found that the provisions of the Child, Family and Community Services Act (CFCSA) (195) and the Adoption Act (196) in combination made the Director the sole guardian of the child, and gave him or her the exclusive ability to place a child under 12 for adoption. (197) Saunders JA quoted with approval previous judgments identifying the status of foster parents as "inherently insecure" (198) and cited Parrett J's description in TOK v British Columbia of foster parents as "essentially contract parents" who temporarily "provide a safe environment for a child in a time of transition or need." (199) Although the Court of Appeal has subsequently identified "some difficulties discerning the ratio of the decision and the meaning of certain passages", it has affirmed the specific outcome in LM v BC in relation to the rights of the director vis-a-vis foster parents. (200) The evidence proffered and the outcome in LM v BC have been criticized for failing to take sufficient account of the child's Metis background and Michif law and customs. (201) From a policy standpoint, one may also question whether a preeminent concern with the director's authority over the claims of long-term foster caregivers is justified after a continuing custody order has been made since reunification with parents or kin is less likely to be at issue at this stage. (202)

Where a foster parent advances a claim to custody and guardianship under the Family Law Act rather than adoption, however, the case of WN v CG, (203) which was not addressed in LM v BC, may be relevant. In this 2012 case, the Court of Appeal held that concurrent proceedings under the now repealed Family Relations Act (FRA) (204) and the CFCSA were possible, with the latter Act paramount in the event of a conflict. (205) The children in question had been removed from the foster home and returned to their father subject to a supervision order. In granting the foster caregivers standing under the FRA, the Court of Appeal held that returning a child to a person "apparently entitled to custody" under the CFCSA (that is, the father) (206) did not decisively determine custody but "rather[,] it simply releases the child from the care and control of the Minister with custody to be determined, if there are competing claims, in another proceeding." (207) The Ontario decision of CG v Catholic Children's Aid Society of Hamilton-Wentworth was distinguished on the ground that the conflict between the two statutes in that case was clear, whereas here, since the appellants were no longer foster parents and the Director did not have custody, the director's decision would not be challenged. (208) While an application by the foster parent was "unusual" in these circumstances, it was not prohibited by the Act or by public policy. (209)

The decision in WN v CG, in light of LM, suggests that foster caregivers can advance a guardianship or custody claim under separate legislation where a child is returned to a parent with or without supervision but not where a child is subject to a temporary or permanent order under the CFCSA. Only where the director has custody or personal guardianship does a conflict between the two Acts arise. However, while return of the child to the parent was not an award of custody per se, the agency could not exercise supervision under such an order without the parent having custody. Moreover, allowing the former foster caregivers to claim custody would seem to undermine a basic policy rationale underlying child protection legislation, which is to protect parental custody in the best interests of children until at least the need for protection is judicially recognized. The appellants here were indirectly doing what they likely could not do directly under the CFCSA, nor under their contract with the Ministry. The question is whether their claim under the FLA should be viewed in isolation from that context, as simply a claim advanced against a parent as in any other custody application, when the claim would not have arisen but for the ministry's removal of the child and placement with them as foster parents. If one imagines a wholly illegitimate or unjustified case, the ruling in WN v CG would end up unjustly diminishing the parents' interests in return of a child, potentially jeopardizing the child's best interests, as well as increasing uncertainty and delay in resolving the matter.

A somewhat decontextualized approach was also adopted in Newfoundland and Labrador (Department of Health and Community Services) v KP. (210) But here, a majority on the Newfoundland and Labrador Court of Appeal further held that foster parents could challenge under the Children's Law Act (211) the director's continuous custody of a child under the protection statute, (212) just as the position of any other custodial parent could be challenged. According to Barry JA: "I see no reason why a Director, who has intervened to protect a child, should be insulated from the interventions and representations of persons given the right to be a party by s 69(4) of the Children's Law Act when a natural parent would not be." (213) Such an action was therefore not precluded even though the minister would inevitably have to be party to it. Concerns with timeliness or delay had to be balanced against psychological bonds and the potential for emotional harm to the child. The court did not apparently see a conflict between the two Acts but at the same time, the provenance of the claim was not wholly irrelevant. The majority distinguished the prior case of SW v Director of Child, Youth and Family Services, (214) which had denied a claim by foster parents under the CLA, because the relationship of the applicants to the child in that case "flowed solely from the caregiver contract." (215) On the facts in KP, the applicants had exercised lengthy access after the child had been removed from their care and had, according to the trial judge, a "unique attachment" to the child. (216) The impact of KP may possibly be confined to such facts.

In Saskatchewan, the outcome of an application by foster parents to adopt a permanent ward will depend both upon a court's assessment of what is in a child's best interests and the ministry's consent. (217) In terms of custody applications, as indicated, a court has a broad discretion under The Children's Law Act, 1997 (CLA) (218) to proceed, to stay CFSA proceedings, or consolidate the actions if the minister applies to be added as a party. (219) While it is clear that parents cannot apply under the CLA to avoid proceedings under the CFSA, (220) kin have frequently done so. (221) The CLA has been held to require clear evidence of a substantial past and ongoing commitment to a child to qualify as a PSI, (222) but many foster parents may meet this test.

The case law is decidedly mixed in terms of outcomes. In Schindel v Stone, (223) foster parents applied under the CLA after the Court of Appeal had ordered that the 3-year-old child should be returned to his father under the CFSA. According to Smith J, the determination of a PSI was discretionary and there was no general rule barring applications for custody by foster parents, who in this case had had care of the child from the age of seven months. However, contrary to the rulings in WN v CG and KP above, the provenance or genesis of their relationship to the child was, in his opinion, important to whether they could qualify as PSIs. The foster parents "were contracted to be a temporary home for [the child] while proceedings were completed under [the CFSA]'' and those proceedings ultimately determined that the father was a fit parent. (224) Given both the legal history and the contractual status of the foster parents, allowing their action would be "incongruous" and not "consonant with any reasonable observer's notion of justice." (225)

Foster parents have, however, been granted the status of PSIs under the CLA in some circumstances. In CF v Saskatchewan, former foster parents of children, who were long-term wards of the minister, were granted such status after their home had been closed for safety concerns related to mould. (226) Elson J held that he had the discretion to determine that the applicants were not strangers at law since they had cared for the children most of their lives. Other potential factors may have included the fact that this was an interim order, the birth mother and the children had consented, a relationship with the children had been maintained post-removal, and the children were permanent wards who were being moved within the foster care system to other foster parents. Here the Minister legally had custody and contrary to WN v CG, but as in KP, the Court did not identify conflict between different custodial orders as an issue.

Three further cases in Saskatchewan dealt with contests between foster and Indigenous kin caregivers. In CH & RV, (227) Dielschneider J held that the foster parent had standing to apply for an interim custody order under the CLA, challenging a temporary order under the CFSA, but he refused to issue such an order where the child was receiving appropriate care by a Band member:
[F]rom the outset C.H., as a foster mother, knew, or should have known,
that her relationship with the child was governed by the terms of her
Agreement with the Minister. Under that agreement custody of S.S. was
committed to her for only that period of time required by the Minister
to find her a home with the Muskoday people. (228)

The contractual obligations of foster caregivers appear to have some impact but it is unclear how the judge related this concern to the best interests of the child, the sole governing principle in determining custody under the CLA once standing has been granted. (229)

In two other cases, neither culture/race nor the contractual status of foster parents was decisive. In MBD v Saskatchewan (Minister of Social Services) (230) Kyle J rejected the ministry's claim that the foster parents had "contractually negated any claim to the child", (231) who had been permanently committed to the minister's care. The Ministry wanted to place the child with Aboriginal relatives in Manitoba and had closed the foster home, but Kyle J noted that "she would be returned to the same extended family in which she was exposed to drugs in utero." (232) He granted the foster caregivers custody given a lack of evidence regarding the proposed relative/caregivers and since the stability the child had experienced over two years in their care was seen to be in her best interests. (233) Similarly, in LP v SP, foster caregivers of a child for over a year sought custody under the CLA because the ministry preferred extended First Nation relatives of the deceased mother. (234) Sandomirsky J held that the foster parents would have to establish standing to claim custody at trial but in consolidating the actions and giving them interim custody, he expressly superseded the directors right to remove the child under the CFSA. He noted: "To me there is clearly a political component which underlies the application in as much as the Minister is not taking a passive or neutral role". (235) It was not clear why the Ministry in this case should be taking a neutral role nor why preserving a relationship with kin and a child's cultural community was identified simply as political. Unlike WN v CG in British Columbia, (236) the Minister's role as a temporary or permanent guardian was not seen to have created a conflict that precluded a custodial claim nor were these cases identified as unique or distinctive, as in the Newfoundland case of KP. (237)

In Alberta, applications for permanent wardship under the CYFFA (238) are to be heard expeditiously together with applications for guardianship under the Family Law Act (FLA). (239) In such a proceeding, the Court of Appeal in RW v Alberta (Child, Youth and Family Enhancement, Director) (240) held that, as in KVW, the suitability and parenting skills of the applicant grandparents should be determined in isolation, and not by comparison with those of the foster family. (241) However, while "care should be taken not to turn that analysis into a competition based on the parenting abilities of the various possible guardians[,]... other issues relating to the best interests of the children" may be relevant. (242) These included: the wishes of the children and the impact of relocation,
whether they were thriving in their foster homes, that they had not
seen their grandparents for over five years, the ability of the
proposed guardians to meet their needs, any blood relationship to the
applicants for guardianship, the advantages of keeping all five
children together, that a move might be disruptive, and all the other
factors listed in s. 18 of the Family Law Act. (243)

Although the court appears to be trying to avoid a comparison of the parties' parenting skills or resources, factors related to stability would generally weigh in favour of claims by foster parents.

Again, in summary, courts in different provinces have taken different positions on the ability of foster caregivers to apply for custody under separate family legislation, with outcomes to some degree dependent on the breadth of rights under child protection statutes and on concerns with the impact of long-term care on a child's best interests. Ontario courts have strictly limited applications by foster parents outside of the child protection statute, while in BC, the outcome may depend on whether the challenge is launched under adoption or child custody legislation and on whether the director has legal custody. In Saskatchewan, outcomes are mixed, with some cases suggesting the provenance of their care matters, others not. However, in several other jurisdictions, including Alberta, Newfoundland and Labrador, and Nova Scotia, separate proceedings can be advanced, though subject to potential limitations. There appears to be a consensus that child protection orders should prevail in the event of conflict, but also different notions of what conflict entails and differences in the weight given to the source of the relations and contractual obligations, with little conclusive direction given by statutes.

A finding of conflict can serve to avoid multiple proceedings and attendant uncertainty and delay, respect the policy objectives of child welfare regimes, and preserve trust on the part of parents, kin, and community members in the integrity of such a system, particularly in cases involving Indigenous children. Where a child is returned to parents or kin by court order as in Schindel, even if subject to supervision as in WN v CG, the best interests of the child should presumably have been secured. As such, the parent or family member, who may be experiencing poverty, racism, or living with disabilities, should not have to face another contested proceeding initiated by foster caregivers. On the other hand, after kin placements have been explored to no avail and a permanent order made, parental and familial interests arguably have less weight--both independently and in relation to a child's best interests (even though a claim to variation is in theory possible)--and foster care providers should have the ability to challenge the removal of a child to other placements within the system. In any case, such claims may be better resolved in the context of child protection proceedings where more information as to a child's history exists, funded programming and financial supports may be available, and the parties may be represented by counsel and better able to represent their interests in light of the policy objectives of the child protection system.


Foster caregivers who have long-term relationships with the children in their care may also assert a violation of rights under section 7 of the Canadian Charter of Rights and Freedoms. (244) As mentioned, the interest of a parent in his or her child has been identified as an "interest of fundamental importance." (245) In NB v G(J), the apprehension of a child from a birth mother was held to "[constitute] a serious interference with the psychological integrity of the parent" (246) and to engage a child's right to security of the person since "the child's psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship." (247) The failure to provide legal assistance where the Ministry sought a temporary order in NB v G(J) constituted a denial of the principles of fundamental justice. (248)

However, in AI v Ontario, the Ontario Superior Court of Justice held that the relationship of foster parents to a child removed from their care was not equivalent to that of a parental relationship. (249) According to Lane J, writing for the majority, foster parents had no section 7 rights and could not assert such a right on behalf of the child as their only legal relationship to the child was as an agent of the Crown by virtue of their contract. (250) Since the child was a permanent ward, only the Crown or the agency could assert rights on behalf of the child. (251) Moreover, the process provided for under the CFSA did not violate the principles of fundamental justice by reason of vagueness nor, on the facts, by delay.

While foster care is distinctive and unlike parental care, its characterization in AI v Ontario arguably reduces the foster care relationship to a mere contractual transaction, which is empirically at odds with the realities of care and its emotional significance to caregivers and children. (252) By contrast, in Peters v Regional Children's Guardian, (253) McDonald J found that the liberty rights of the child were potentially infringed by way of orders as to where he or she will live and that the foster parents could apply on behalf of the child in relation to a violation of such rights as a result of the denial of their private guardianship application. It may, however, be difficult to find an infringement of the principles of fundamental justice in such cases in the absence of errors of law, (254) patent unreasonableness, or procedural unfairness.


Finally, the possibility of a custom adoption (an adoption in accordance with the customs of an Indigenous nation or community) between the foster and birth parents was recently raised in AS v British Columbia (Director of Child, Family and Community Services), (255) but dismissed as a claim inconsistent with previous allegations made in the pleadings on behalf of the foster caregivers. Indeed, in dismissing the application by the same foster parents as in LM v BC to stay the removal of the child pending an appeal to the Supreme Court of Canada, Cote J referenced the lower courts' description of the claim as an abuse of process and an attempt purely to delay implementation of the Director's permanency plan. (256)

Custom adoption is a very interesting claim that warrants further study given the disproportionate number of First Nations children in care, the protection of customary law at common law, and the constitutional status of existing Aboriginal rights under section 35. (257) At a minimum, however, one would require a factual basis upon which a child could be seen to have been adopted in accordance with the traditions of a particular First Nation or Indigenous community. Simple acknowledgement of a relationship will not suffice. (258) Cases have generally held that there must also be voluntary consent of both biological and adoptive parents and an accepted rationale for the adoption. (259) In British Columbia, the custom adoption must also be understood to create the same basic relationship as would result from an adoption order. (260) However, Indigenous customary adoptions commonly preserve both the biological status of the child and the adoptive relationship. (261) Finally, the adoptive parents must be Indigenous or entitled to rely on Indigenous customs. In the intestate succession context, clear and convincing evidence of an acceptance of Aboriginal customs has been required--that is, that one lived by or followed such customs. (262) Courts also look to whether the non-Indigenous adoptive parent was accepted by the Chief, council, or community at large. (263) Foster caregivers could rely on such cases only if the birth parent consented to the adoption after placement and if the placement complied with Indigenous customs, which may require community acceptance, if not involvement. Indigenous kin or community members would be more likely to succeed in advancing such a claim. Problems in recognizing custom adoptions more generally have been linked to a number of factors including a lack of information about the process on the part of social workers and a lack of adequate financial post-adoption assistance. (264) A transfer of jurisdiction over child welfare to First Nations, Metis, and Inuit may obviate or reduce the need to argue in favour of custom adoptions.


The above survey of cases suggests that there is substantial confusion and often no clear policy rationales for the different positions currently assumed by courts and legislatures in relation to claims by foster parents or caregivers. However, these differences appear to revolve around three major policy concerns or themes.

First, there are marked differences in the weight placed on the director's authority in order to ensure certainty and the speedy resolution of cases. Foster care providers have most often failed in their claims to standing where the statutes in question or judicial interpretations thereof have emphasized certainty which, along with the expertise of the ministry, is believed generally to advance the interests of children. This emphasis is most evident in British Columbia and in the denial of claims by foster caregivers to adoption even where they have cultural ties to the children in their care. In Nova Scotia, as well, in cases such as NNM v NS (265) and TG v NS, (266) courts have identified a concern with the potential for opportunism and strategic manoeuvring on the part of foster parents in seeking adoption that can increase delays. Delays can sometimes work in favour of birth parents by, for example, allowing them more time to overcome substance abuse issues (although these issues often intensify in the aftermath of an apprehension as parents are reeling from the immediate loss of their children). However, if children remain in the care of foster parents, delay will generally be seen to strengthen attachments and their claims to custody.

A second significant policy concern is that increased foster parent rights can undermine the interests of birth parents, kin, and children themselves by reducing support for family reunification or frustrating contact with parents and extended family in the course of child protection proceedings. While permanency planning by child welfare workers is widely acknowledged to be important in achieving long-term stability for children taken into care, in deciding the separate issue of whether foster caregivers should be able to actively compete with parents and kin for custody in the course of legal proceedings, courts must take into account both parental interests and the value of maintaining familial relationships in fostering the paramount objective of protecting a child's best interests. However, there are differences in how broadly "family preservation" has been defined, with some courts being more or less hospitable to different cultural conceptions of extended family. There are also marked differences in the stage of proceeding at which foster parents are identified as being able to participate or independently advance a claim. Some jurisdictions provide standing after the first full hearing and a finding that the child is in need of protection, while others require the issuance of a permanent or indefinite order, which generally signifies that efforts towards family preservation have been exhausted. On the other hand, some courts have allowed foster parents to challenge the return of a child to birth parents or kin even before a protective order is made. This position is arguably at odds or in tension with the constitutionally recognized fundamental interests of parents; (267) with the premise or presumption, explicit or implicit in most child protection statutes, that a child's interests are best met by reunification with their parents or primary custodians in the absence of a finding that a child is in need of protection; and with the unique role contemplated for foster caregivers by contract and under many child protection statutes in both providing immediate care for children and facilitating their return to their parents of origin or former caregivers. (268)

Allowing claims by foster parents under separate family legislation can likewise serve to circumvent or undermine recognition of parental interests and their relationship to a child's best interests under child protection statutes, given that claims by foster parents are grounded in and arise directly from processes authorized under such statutes. This option not only generates multiple proceedings but can involve beleaguered parents or kin in another protracted legal struggle with foster caregivers, one they may lack the legal resources to deal with. Presumptively dealing with claims by foster parents in the child protection context may also provide better information on the child's history, enhance sensitivity to the objectives of family preservation, allow for financial supports, and offer legal representation for children and parents at no cost or at less cost for kin and foster caregivers.

It is noteworthy that a number of the more contentious cases canvassed in this article have involved foster caregivers who wished to adopt at the outset of the placement. Some courts may be beginning to accord these "F-A parents" special recognition in light of different understandings as to the duration of care between agencies and the foster parents at the time of placement. (269) While these arrangements can promote more stable attachments for a child and are thereby seen to promote children's best interests, these understandings may also be inherently ambiguous or ill-informed and prone to give rise to high levels of conflict and litigation with parents or kin who are not party to these understandings. An empirical assessment of outcomes in such cases--both within and outside of Canada--is needed for any specific policy recommendation, but cases like Family and Children's Services of Guelph and Wellington County v CM (270) do raise concerns as to whether such placements tend to impair working relationships with parents and kin post-apprehension and undermine trust in the potential for family reunification.

Finally, there is the issue of the significance of culture and the impact of enhanced foster parent rights on Indigenous or African-Canadian children, parents and communities in particular. While courts and legislatures widely assume that a child's attachment to foster care providers is enhanced by the time a child has spent in their care--especially, it seems, when it exceeds two years--multiple factors may be relevant to the quality of attachment, including the parenting style, (271) and the individual child's age and wishes, temperament and likely response to separation. Along with concerns related to attachment, legislatures and ministries have increasingly acknowledged the significance of cultural and racial connections in an assessment of a child's long-term best interests. (272) These interests may be reconciled where foster parents are themselves kin or where they have Indigenous or African-Canadian ancestry; however, courts may also in the latter cases still overlook the child's specific culture and the significance of a child's connection with that community. (273) A cultural connection will clearly strengthen the claim of foster caregivers but even in its absence, judges are often moved by a concern with disrupting long term attachments. Notably, in the cases surveyed, foster parents were rarely considered for access on a long-term basis and tended to be constructed either as temporary caregivers or alternative custodial parents.

Attending to the issues discussed above on parental or familial reunification may help to reduce concerns that foster parent applications are undermining cultural and community connections for Indigenous and racialized children. Far more significant, however, will be the impact of enhanced funding for preventive services on reserves and the transfer of jurisdiction over child welfare to Indigenous nations. (274) Indigenous jurisdiction, along with adequate funding, could fundamentally change the material conditions of care for Indigenous children and reduce substantially, if not entirely, the removal of Indigenous children from their communities. (275) To the extent that children will in the future be placed in homes or facilities within their nations, this change will obviate or minimize the tension between culture and attachment in assessing a child's best interests. Depending on how jurisdiction is established, the move to self-governance also has the potential to remove this issue from the purview of non-Indigenous courts and tribunals.

A number of other policy issues and concerns are relevant to a more comprehensive evaluation of foster parent claims. Issues related to the quality and duration of foster care include an assessment of the criteria for fostering, the benefits and limits of time lines, administrative as opposed to judicial modes of review, and the availability of access and openness orders to foster caregivers or to patents or kin post-adoption. While most of the cases canvassed in this article involved young children and the wishes of older children were given some weight, (276) more research is needed to ascertain the extent to which the child's views and perspective are considered in child protection proceedings, in accordance with the Convention on the Rights of the Child, (277) whether through amicus curiae or otherwise. Children are obviously the individuals most directly impacted and their views should carry considerable weight in accordance with their age and maturity. Other policies aimed at reducing rates of foster placements are also highly relevant to minimizing challenges related to foster care and include investments in innovative and sustainable community-based and residential services for parents and families prior to the emergence of a crisis; (278) a review of grounds for apprehension, which have been greatly expanded in some jurisdictions; and the conditions for interim post-apprehension hearings, which increase the placement of children in care; (279) along with more efforts to enable kin or community placements post-apprehension.

Foster caregivers generally provide a highly valued service to children and families in crisis. They provide a home for children who may have experienced inadequate care and do so most often out of a desire to assist and care for children. Under such conditions, it is hardly surprising that strong attachments develop and generate the intractable conflicts canvassed in this article. Clearly there are circumstances in which the bonds between foster parents and the children in their care should be preserved in some manner. However, in order to maintain trust on the part of parents, kin and affected communities in the child welfare system and thereby promote children's best interests, there is also clearly a "delicate alliance" (280) to be maintained between the interests of all concerned parties.

WANDA WIEGERS ([dagger])

([dagger]) Professor, College of Law, University of Saskatchewan. The research assistance of Laura Barath, Paige Van de Sype, Zoc Johansen-Hill, and Jeff Edgar as well as funding from the Foundation of Legal Research and the Centre for Forensic Behavioural Science and Justice Studies, University of Saskatchewan are gratefully acknowledged.

(1) See Statistics Canada, Families and Households Highlight Tables, 2011 Census (Age Groups and Sex of Foster Children, for Both Sexes, for Canada, Provinces and Territories), online: < 8&Sex=l&tableID=304>. According to the 2016 census, 28,030 children aged 0 to 14 were in foster care: Statistics Canada, Census in Brief: Portrait oj Children's Family Life in Canada in 2016, by France-Pascale Menard et al (Ottawa: Statistics Canada, 2 August 2017), online: <>.

(2) See e.g. Veronica Strong-Boag, Fostering Nation? Canada Confronts its History of Childhood Disadvantage (Waterloo: Wilfred Laurier University Press, 2011) at 164-71.

(3) See e.g. ibid it 171; Rob Twigg, "Passion for Those Who Care: What Foster Carers Need" in Sharon MacKay, Don Fuchs & Ivan Brown, eds, Passion for Action in Child and Family Services: Voices from the Prairies (Regina: University of Regina, 2009) 165 at 166-70; Child Welfare League of Canada, "Rescuing a Critical Resource: A Review of the Foster Care Retention and Recruitment Literature" (23 October 2014) at 14-16, online (pdf): Canadian Foster Family Association <> [Child Welfare League]. I use the terms foster parent, foster caregiver, and foster care provider interchangeably, but the term foster parent is used more frequently in this article because the cases and the child protection statutes in most common law jurisdictions use this descriptor. British Columbia and the Yukon statutes use the term caregiver.

(4) See Twigg, supra note 3 at 167-68; Judith Mosoff et al, "Intersecting Challenges: Mothers and Child Protection Law in BC" (2017) 50 UBC L Rev 435 at 500. See also e.g. Saskatchewan, Advocate for Children and Youth, No Time for Mark: The Gap Between Policy and Practice (Special Investigation Report), Bob Pringle (Saskatchewan: Advocate for Children and Youth, 20 May 2015) at 6, online (pdf): <>; Saskatchewan Advocate, Lost in the System: Jake's Story (Special Investigation Report), by Bob Pringle (Saskatchewan: Advocate for Children and Youth, 16 September 2014) at 4, online (pdf): <>, both of which document concerns about a lack of resources and foster home overcrowding.

(5) See e.g. Jorge Barrera, "Indigenous Child Welfare Rates Creating 'Humanitarian Crisis' in Canada, Says Federal Minister" (2 November 2017), online: CBC News <>; Honouring the Truth, Reconciling for the Future: Summary of the Final Report oj the Truth and Reconciliation Commission of Canada, (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 137-44 [TRC Final Report]; Michael Wray & Vandna Sinha, "Foster Care Disparity for Aboriginal Children in 2011" Centre for Research on Children and Families (2015), online (pdf): Child Welfare Research Portal <>; One Vision, One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians (Toronto: Ontario Association of Children's Aid Societies, September 2016) at iv, 26-28, 58 [One Vision, One Voice], online (pelf): <>.

(6) Raven Sinclair, "Adoption: Canada" in J Dena Ned & Caren J Frost, eds, Contemporary Issues in Child Welfare: American Indian and Canadian Aboriginal Contexts (Vernon, BC: JC Charlton Publishing Ltd, 2017) at 165.

(7) Many authors have considered the claims of foster parents vis-a-vis parents or kin in relation to assessments of children's best interests, highlighting in particular a failure to recognize the impact of colonialism and cultural difference. See e.g. Marlee Kline, "Child Welfare Law, 'Best Interests of the Child' Ideology, and First Nations" (1992) 30:2 Osgoode LJ 375; Mosofif et al, supra note 4; Susan Boyd & Krisha Dhaliwal, '"Race is Not a Determinative Factor': Mixed Race Children and Custody Cases in Canada" (2015) 29:2 Can J Fam L 309 at 347; Hadley Friedland, "Tragic Choices and the Division of Sorrow: Speaking About Race, Culture and Community Traumatisation in the Lives of Children" (2009) 25:2 Can J Fam L 223; Bernd Walter et al, '"Best Interests' in Child Protection Proceedings: Implications and Alternatives" (1995) 12:2 Can J Fam L 367 at 376, 394, 403. Bruce MacLaurin and Nicholas Bala briefly canvas the rights of foster parents in Bruce MacLaurin & Nicholas Bala, "Children in Care" in Nicholas Bala et al, eds, Canadian Child Welfare Law: Children, Families and the State 2nd ed (Toronto: Thompson Educational Publishing, 2004) at 134-36.

(8) Canadian Charter of Rights and Freedoms, s 7, 35 Parr I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

(9) See e.g. RP v Alberta (Director of Child, Youth and Family Enhancement), 2015 ABC A 171 at paras 18, 20, 75, 83-84 [RP v Alberta CA]; Re SC, 2017 SKQB 165 at para 24 [Re SC QB], aff'd AC v CB, 2018 SKCA 19 [Re SC CA]; Nova Scotia (Community Services) v TG, 2012 NSCA 43 at paras 42,105, 109, 153-54, 184-85, leave to appeal to SCC refused, [2012] SCCA No 237 [TG v NS].

(10) See also Hilary Brown, "The Child and Family Services Act in Relation to Indigenous Children: Does it Measure up to the Truth and Reconciliation Commission Report?" (2017) 36:2 Can Fam LQ171 at 181-82, 185.

(11) Further discussion of the parens patriae doctrine will be found in the text accompanying notes 58-62, below.

(12) These include Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families, 1st Sess, 42nd Parl, 2019 (second reading 3 May 2019), which has been referred to the Standing Committee on Indigenous and Northern Affairs, as well as remedial orders and enhanced funding flowing from a finding of discrimination against First Nations children and families in First Nations Child and Family Caring Society of Canada v Attorney General of Canada (Minister of Indian Affairs and Northern Development), 2016 CHRT 2, 2016 CarswellNat 113 [Caring Society].

(13) Winnipeg Child and Family Services v KLW, 2000 SCC 48 at para 72, L'Heureux-Dube J [KLW]. See also New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46 at paras 113-15, 177 DLR (4th) 124, L'Heureux-Dube J [NB v G(J)].

(14) See e.g. Public Health Agency of Canada, Canadian Incidence Study of Reported Child Abuse and Neglect--2008: Major Findings (Ottawa: Public Works and Government Services, 2010) at 31; Catherine Roy et al, "Child Neglect in Canada", Centre for Excellence for Child Welfare (2005) at 1, online (pdf): Child Welfare Research Portal <>; Anne Blumenthal, "Child Neglect I: Scope, Consequences, and Risk and Protective Factors" Centre for Research on Children and Families (January 2015), online (pdf): Child Welfare Research Portal <>; Lawrence M Berger & Jane Waldfogel, "Economic Determinants and Consequences of Child Maltreatment" (2011) Organization for Economic Co-operation and Development Working Paper No 111; Karen J Swift & Henry Parada, "Child Welfare Reform: Protecting Children or Policing the Poor" (2004) 19:1 JL&Soc Poly 1 at 9.

(15) See Barbara Fallon et al, "Ontario Incidence Study of Reported Child Abuse and Neglect--2013: Major Findings" (Toronto, ON: Child Welfare Research Portal, 2015) at 67-68, online (pdf): Child Welfare Research Portal <>. One Ontario study of mothers whose children had been apprehended found that many were experiencing unstable, inflexible jobs with few benefits and irregular part-time hours evenings or weekends, residential insecurity and "socially toxic" neighborhoods, along with unsupportive or abusive fathers, children with serious behavioural issues, and physical disabilities, domestic violence, substance abuse, and mental health problems: Sarah Maiter, Shehenaz Manji & Sally Palmer, "Home Truths: What Mothers of Children in Placement Say about Their Lives" in Gary Cameron et al, eds, Creating Positive Systems of Child and Family Welfare: Congruence with the Everyday Lives of Children and Parents (Toronto: University of Toronto Press, 2013) 94 at 133. See also Mary Russell, Barbara Harris & Annemarie Goekel, "Parenting in Poverty: Perspectives of High-Risk Parents" (2008) 14:1 J Children & Poverty 83. See also Leroy H Pelton, "The Continuing Role of Material Factors in Child Maltreatment and Placement" (2015) 41 Child Abuse & Neglect 30 at 31-32.

(16) See Wray & Sinha, supra note 5 at 2-3; Fallon et al, supra note 15 at 65-66.

(17) See Wray & Sinha, supra note 5 at 2-3.

(18) See TRC Final Report, supra note 5 at 71-72, 138, 186 (describing the child welfare system in Canada as a continuation of the assimilation of the residential school system). See also Vandna Sinha et al, "Kiskisik Awasisak: Remember the Children, Understanding the Overrepresentation of First Nations Children in the Child Welfare System" Assembly of First Nations (2011), online (pdf): Child Welfare Research Portal <>.

(19) Caring Society, supra note 12 at paras 121-43.

(20) See One Vision One Voice, supra note 5 at 21, 26-28, 58-59, 69-70 (which noted extreme disproportionalities in Metropolitan Toronto); Ontario Human Rights Commission, "Interrupted Childhoods: Over-Representation of Indigenous and Black Children in Ontario Child Welfare" (2018), online (pdf): < nous%20and%20Black%20children%20in%20Ontario%20child%20welfare_accessible.pdf> (finding that Black children are over-represented in 30% and Indigenous children are over-represented in 93% of the 27 agencies under review, at 4).

(21) See Xiaobei Chen, Tending the Gardens of Citizenship: Child Saving in Toronto, 1880s-1920s (Toronto: University of Toronto Press, 2005) at 119-23.

(22) See ibid at 123, 127.

(23) See TRC Final Report, supra note 5 at 137-39.

(24) See supra note 2.

(25) See Twigg, supra note 3 at 173-79; Teresa Toguchi Swartz, "Mothering for the State: Foster Parenting and the Challenges ot Government-Contracted Carework" (2004) 18:5 Gender & Society 567 at 567-69, 577-78, 582.

(26) In Saskatchewan, foster parents must complete standardized training; obtain a home study assessment; pass a criminal record review and check for past ministry involvement and home safety; and submit physician reports for themselves and their own children as well as obtain five references: Saskarchewan, Ministry of Social Services, Children's Services Manual (Regina: December 2018) at ss 4.4.1-4.4.3, 4.4.6 [Sask CSM].

(27) In Alberta and Ontario, foster parents must be licensed and their homes inspected annually. See Child, Youth and Family Enhancement Act, RSA 2000, c C-12, s 105.2 [Alberta CYFEA]; Child, Youth and Family Services Act, RSO 2017, c 14, s 275-76 [Ontario CYFSA]. Though foster parents are not licensed in Saskatchewan, contact with workers is supposed to occur at least every six months and a formal review annually. See Foster Home Assessment and Review, Saskatchewan Foster Parents Association, at 1.

(28) See KLB v British Columbia, 2003 SCC 51 at paras 29, 79, 96 [KLB] (finding that the BC government was not vicariously liable for wrongs committed by foster parents against their children because it did not "exercise sufficient control over their daily activities" and "management of [the] household" under child welfare legislation at that time).

(29) See Sask CSM, supra note 26, s 12.12.

(30) While various statutes use different terms, I use these terms interchangeably to designate state agencies.

(31) In Saskatchewan, every contract is by statute "deemed" to include such a term: The Child and Family Services Act, SS 1989-90, c C-7.2, s 54(3) [Sask CFSA]. See also Wanda Wiegers, "Commodification and the Allocation of Care and Responsibility for Children" (2017) 67:2 UTLJ 206 at 230 (discussing the normative impact of such contractual provisions). See Part IIIA for further discussion of the Child Protection Process.

(32) See e.g. Strong-Boag, supra note 2 at 8-9, 143-63; Child Welfare League, supra note 3 at 177-78; Vanessa Milley, Foster Parent Society of Ontario Governance and Policy Chairperson, "Provincial Child Welfare Priorities: Caregivers Forum" (29 March 2016) at 13, online (pdf): <>.

(33) In a 2012 survey of 941 foster families in Canada, 78% were European-Canadian; 9% Aboriginal (3% Metis, 3% First Nations, and 3% Inuit), 3% French Canadian, and 10% other ethnicities. See Child Welfare League, supra note 3 at 177. Kinship caregivers may also provide foster care subject to meeting the standard criteria.

(34) See Child Welfare League, supra note 3 at 5, 181. See also Swartz, supra note 25 at 569, 572, 575-76.

(35) In Saskarchewan, for example, foster parents are paid a basic maintenance rate per child that varies depending on location and the age of the child from approximately $700 to $1000 per month subject to special increases related to initial placement, skill development, and fees for extra services. See Sask CSM, supra note 26, s 6.2.

(36) C Schwartz et al, Vancouver, BC: Children's Health Policy Centre, Faculty of Health Sciences, Simon Fraser University (2014) 8:3 Children's Mental Health Research Quarterly 1 at 3.

(37) See e.g. Minister of Children and Family Development, Foster Family Handbook, 5th ed (1997) at 58-59, online: <>. See also below, Part III, B, and C.

(38) See Children's Aid Society of Metropolitan Toronto v S(D), [1991] OJ No 1384, 1991 CarswellOnt 6197 (Prov Div) [S(D) cited to Carswell] at para 35, Nasmith J (writing that "[f]ifteen years ago, foster parents could never be considered as candidates for adoption... Most of us who were cognizant of protection issues, were relieved when policies changed and foster parents were allowed to contend for adoption of children who were their wards" at para 35).

(39) See Ontario Association of Children's Aid Societies, "Submission to the MCYS Adoption Enhancements Review" (October 2016) at 13, online (pdf): < wp-content/uploads/2016/11 /OAC AS-submission-to-the-MCYS-Adoption-Enhancement-ReviewminusGRZ-003.pdf>. Only 14.3% were "adopted by kin" (ibid).

(40) See e.g. the "Foster to Permanency" program established in Ontario by the Family & Children's Services of St. Thomas and Elgin 25 years ago, online: <>. In an effort to promote stability for children taken into care and avoid a drift through multiple foster homes, agencies over the past two decades have widely adopted permanency planning models that encourage the exploration of alternative options for permanency, such as kinship care and adoption, concurrently with efforts towards parental reunification. However, not all agencies are supportive of foster to adopt initiatives.

(41) See Deborah Ellison & Dawn Flegel, "One Child, One Placement: The Elgin Model" (2010) 55:1 Ontario Association of Children's Aid Societies, online: <www.oacas.or g/ pubs/oacas/journal/201 OSpringSummer/one.html>.

(42) See e.g. Emma Graney, "Looking to Adopt in Alberta? Statistics Show There Are Fewer Children Waiting for a Home", Edmonton Journal (22 July 2016) online: <>; Kathleen Harris, "International Adoptions Decline Dramatically in Canada", CBC News (20 August 2017), online: <>.

(43) See the text accompanying notes 249-54, below, for further discussion on this topic.

(44) See MacLaurin & Bala, supra note 7 at 135.

(45) See Marvin M Bernstein & Kristina J Reitmeier, "The Child Protection Hearing" in Bala et al, supra note 7 at 67.

(46) See e.g. Ontario CYFSA, supra note 27, ss 74(2), 81; Sask CFSA, supra note 31, ss 11, 17.

(47) See e.g. Ontario CYFSA, supra note 27 at ss 1(2).2, 99, 100; s 101(3) (where courts are to be satisfied that less disruptive alternatives are inadequate before placing the child elsewhere); Sask CFSA, supra note 31, s 14; Alberta CYFEA, supra note 27, s 2(l)(c)&(e).

(48) Sask CFSA, supra note 31, s 3.

(49) See e.g. Ontario CYFSA, supra note 27, s 1; Child Family and Community Service Act, RSBC 1996, c 46 [CFCSA], ss 2(b), (c), (e); Alberta CYFEA, supra note 27, s 2(a). For an overview of provincial statutes, see DA Rollie Thompson, "The Retreat from 'Least Intrusive Intervention' in Canadian Child Protection Law" (2018) 37:2 Can Fam LQ 99.

(50) See B(R) v Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 at para 83, [1994] SCJ No 24 [B(R)].

(51) Supra note 13 at para 61.

(52) See Charter, supra note 8 (stating that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" at s 7).

(53) NB v G(J), supra note 13 at para 76. A parent's right to nurture and make fundamental decisions for a child have also been recognized as part of the parent's right to liberty under s 7. See B(R), supra note 50.

(54) Supra note 13 at para 72.

(55) Ibid at para 15.

(56) NB v G(J), supra note 13 at paras 99-100.

(57) See generally Bernstein & Reitmeier, supra note 45.

(58) [1982] 2 SCR 716, 142 DLR (3d) 20.

(59) Ibid at 724.

(60) 2008 NSCA 69 [NNM v NS].

(61) Ibid at para 86.

(62) 2003 NBQB 196atpara48 [HC v NB].

(63) TG v NS, supra note 9. In both TG v NS and NNM v NS, supra note 60, the foster parents had cared for the children for almost two years.

(64) Ibid at paras 158-59. See also Children and Family Services Act, SNS 1990, c 5, ss 3(2)(g), 20, 39(8), 44(3), 47(5) [NS CFSA].

(65) Sask CSM, supra note 26, s 4.4.13 at no 5 (a foster parent contesting the closure of his or her home can invoke this process).

(66) Child, Family and Community Service Regulations, BC Reg 527/95, ss 14-19.

(67) Alberta CYFEA, supra note 27, s 119(2).

(68) RP v Alberta CA, supra note 9.

(69) Ibid at para 69.

(70) Ibid at para 97.

(71) at para 75.

(72) Ibid at para 95.

(73) The foster mother had Mohawk roots and her biological son had a Cree father. Bielby JA noted that the child in question looked more African than Cree and would "stand out" rather than "blend in" on the reserve: ibid at para 95. These facts raise issues as to how to define a child's ancestral community and what is needed to sustain a connection with that community. But see MM v TB, 2017 BCCA 296 (where the Court held that preserving an Aboriginal child's "cultural identity" under the Adoption Act, RSBC 1996, c 5, s 3(2) was not "limited to the language and culture of the Band and First Nation into which the child was born" at para 96).

(74) RP v Alberta CA, supra note 9 at paras 23, 94.

(75) RP v Alberta (Director of Child, Youth and Family Enhancement), 2016 ABQB 306 at paras 118, 138, relying on E v Eve, [1986] 2 SCR 388, 31 DLR (4th) 1, LaForest J (after the Alberta Court of Appeal referred the matter back to the Court of Queen's Bench) [RP v Alberta QB]. See also Nafie v Badawy, 2015 ABC A 36 at para 91; AA v BB, 2007 ONCA2.

(76) See RP v Alberta QB, supra note 75. Renke J also ordered that the Director provide financial assistance for the adoption under s 81 of the Alberta CYFEA and a further hearing was scheduled to determine access rights for the grandmother under the adoption order.

(77) See e.g. Racine v Woods, [1983] 2 SCR 173, 1 DLR (4th) 193; Algonquins of Pikwakanagan v Children's Aid Society of the County of Renfrew, 2014 ONCA 646, leave to appeal to SCC refused, [2014] SCCA No 513 (the Ontario Court of Appeal found that First Nations culture was only one factor relevant to the best interests test and that a cultural connection as mandated under s 37(4) could be maintained through access visits to the grandmother twice a year). According to Hilary Brown's review of Ontario cases, culture was "almost always" outweighed by emotional attachment to non-Indigenous foster families: Brown, supra note 10 at 181. Raven Sinclair argues that two central assumptions by Wilson J in Racine--that attachment necessarily increases with time in care and that the significance of culture and heritage will abate with time--are not supported in the literature, and that both contribute to the "continuous scooping of Indigenous children through legal channels": Sinclair, supra note 6 at 165.

(78) Ontario CYFSA, supra note 27, ss 74(3), 80. See also the preamble, which references systemic biases, racism, and the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007), online (pdf): <>.

(79) See Ontario CYFSA, supra note 27; The Child and Family Services Act, CCSM 1985-86, c C80 [Man CFSA].

(80) Ontario CYFSA, supra note 27, ss 109(5), 109(7), 109(8), 115(4)(e).

(81) Ibid, ss 109(16), 109(17).

(82) Ibid, s 192. See e.g. Children's Aid Society of Renfrew (County) v H (MS), [2009] OJ No 313, 94 Admin LR (4th) 245 (Ont Div Ct) (applying a similar provision under the former Child and Family Services Act, RSO 1990, c C11 [Ontario CFSA], as repealed by the Ontario CYFSA).

(83) See e.g. Family, Youth & Child Services of Muskoka v M(D), 2010 ONSC 6018 (where the society's refusal of a foster parent's application was rescinded by the CFSRB).

(84) See e.g. Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry v D (SV), 2016 ONSC 350; 1(A) v Ontario (Director, Child and Family Services) (2005), 75 OR (3d) 663, 2005 CanLII 20791 (Div Ct) [AI v Ontario].

(85) See Dunsmuir v New Brunswick, 2008 SCC 9; Stamatis v Children's Aid Society of Toronto, 2017 ONSC 7056.

(86) See e.g. Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry v J(A), 2014 ONSC 2688.

(87) See Ontario CYFSA, supra note 27, ss 109(15), 192(11).

(88) (1998), 161 DLR (4th) 466, 40 OR (3d) 334 (CA) [CG v CAS of Hamilton- Wentworth].

(89) Ibid at para 24.

(90) RSO 1990, c C12 [CLRA].

(91) 2002 CanLII 41858, (2002) 34 RFL (5th) 44 (ON CA) [RL v CAS Niagara]. See also AI v Ontario, supra note 84 (regarding delay).

(92) R (C) v Children's Aid Society of Hamilton, 2004 CanLII 58384 at para 129, 8 RFL (6th) 285 (Ont Sup Ct). An interim order was granted preventing the removal of the child from the foster parents to another jurisdiction and Czutrin J held that parens patriae can be invoked if it is the only way to meet the paramount objective of the legislation (ibid at para 126).

(93) See e.g. ReNP, 2001 CanLII 28184, 15 RFL (5th) 151 (Ont Sup Ct).

(94) Man CFSA, supra note 79.

(95) Ibid, s 31(1).

(96) Ibid, s 77(1).

(97) Ibid, s 51(1). See also Foster Parent Appeals Regulation, Man Reg 185/2003 (the foster parents must seek a review first by the executive director of an agency, then by the authority, and finally the adjudicator appointed by the minister).

(98) See Man CFSA, supra note 79, s 51(2) (unless the child is in need of protection in their care; has lived with them for less than a year and is being placed for adoption; a voluntary placement agreement or court order has terminated or expired; or a planned placement and pre-placement visits have occurred).

(99) First Nations of Northern Manitoba Child and Family Services Authority v Manitoba (Minister of Family Services and Housing), 2014 MBCA 42 at para 74, [FN of Manitoba CFSA v Manitoba], leave to appeal to SCC refused, [2014] SCCA No 362.

(100) Ibid.

(101) Ibid at para 76.

(102) But see Robert Harding's analysis of press coverage critical of devolution to First Nations in Manitoba, "News Reporting on Aboriginal Child Welfare: Discourses of White Guilt, Reverse Racism, and Failed Policy" (2009) 26:1 Can Social Work Rev 25.

(103) FN of Manitoba CFSA v Manitoba, supra note 99 at para 14.

(104) CFCSA, supra note 49, ss 35(2)(d), 41(1)(b), 42.2(4)(c), 49(7)(b), 54.01(5), 54.1; Alberta CYFEA, supra note 27, ss 52-57; Sask CFSA, supra note 31, s 23; Yukon, Child and Family Services Act, SY 2008, c 1, ss 48(2), 49(1), 57(3)(b); Ontario CYFSA, supra note 27, ss 101(1), 102(1); Children and Youth Care and Protection Act, SNL 2010 c C-12.2, s 32(2)(b) [CYCPA]; Child Protection Act, SPEI c C-5.1, s 28(2); NS CFSA, supra note 64, ss 36(1)(f), 36(4). In Manitoba and New Brunswick, applications by non-parents can only be made under their child protection statutes, the Man CFSA, supra note 79, and the Family Services Act, SNB 1980, c F-2.2, ss 1, 56(1), 129(2). In the Northwest Territories and Nunavut, applications by others must be pursued under both the Children's Law Act, SNWT 1997, c 14, s 20, and the Child and Family Services Act, SNWT 1997, c 13, s 7; ME v KM, 2017 NUCJ 18.

(105) See MacLaurin & Bala, supra note 7 at 103.

(106) Supra note 38.

(107) Ibid at paras 15, 16 [emphasis added]. The hearing in question is not the summary interim post-apprehension or presentation hearing but rather the protection hearing, i.e. where the court determines, based on a complete and reliable evidentiary record, whether the child is in need of protection.

(108) Ibid at para 18.

(109) Ibid at para 19.

(110) RL v CAS Niagara, supra note 91.

(111) Ibid at para 41.

(112) S(D), supra note 38 at paras 32, 33.

(113) See Ontario CYFSA, supra note 27, s 102(2), (6).

(114) Ibid, s 102(1); Formerly Ontario CFSA, s 57.1, supra note 82.

(115) See Ontario CYFSA, supra note 27, ss 113(2), 113(4), 115(4)(e), 116(1)(b); Formerly Ontario CFSA, supra note 82, ss 64(4), 65.2(1).

(116) See Ontario CYFSA, supra note 27, s 79(3); Formerly Ontario CFSA, supra note 82, s 39(3).

(117) See e.g. Durham Children's Aid Society v N(S), 2011 ONSC 2576.

(118) See Family Law Rules, O Reg 114/99, rule 7(5); Children's Aid Society of London-Middlesex v H(S), [2002] OJ No 4491, 39 RFL (5th) 68 (Sup Ct) (application by grandparents before finding in need of protection).

(119) See e.g. Children's Aid Society of London and Middlesex v P(J), 95 ACWS (3d) 316, [2000] OJ No 745.

(120) Sec e.g. Re Children's Aid Society of London and Middlesex and AL, JG and FL, 2018 ONSC 1682 (dismissing the foster parents' motion to be added as parties or granted additional rights where the nine-month-old child had not yet been found to be in need of protection and the society was not asking for extended wardship).

(121) Catholic Children's Aid Society of Toronto vS(RD), 55 RFL (6th) 132 at para 21, [2008] WDFL 2768; Children's Aid Society of London and Middlesex v AL, 2018 ONSC 1682.

(122) See AM v Valoris pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 [AM v Valoris].

(123) [1994] 2 SCR 165.

(124) Ibid at para 40. Here, the child had lived five out of her seven years with the foster family and did not want to be separated from them. See also Syl Apps Secure Treatment Centre v Bernard De L, 2007 SCC 38 at paras 44-47 (emphasizing the primacy of a child's best interests).

(125) Supra note 122 at para 4.

(126) See ibid at para 31.

(127) Sec ibid.

(128) 2016 ONCJ 685 [CM]. Section 57.1 is now section 102 and paragraph 65(1)(d) is now paragraph 114(d) in the Ontario CYFSA, supra note 27. The child in CM had been apprehended from the maternal grandparents who had care under a supervision order.

(129) CM, supra note 128 at para 143.

(130) See ibid at para 142.

(131) See ibid at para 100, "where lengthy periods of time elapse following an apprehension before the finding issue is brought before the court for hearing."

(132) Ibid at para 128.

(133) Ibid at para 127.

(134) As such, the foster mother would not have been entitled to administrative review, as per what was formerly ss 61(7)-(8.6) of the CFSA and is now ss 109(7)-(15) of the CYFSA.

(135) CM, supra note 128 at para 47.

(136) Ibid at para 75.

(137) Ibid.

(138) Ibid at para 106.

(139) Sask CFSA, supra note 31, s 23.

(140) See e.g. Re CB, 2002 SKQB 208. But see CH & RV v DG, 147 Sask R 230, [1996] SJ No 542 at para 15 (SKQB) [CH & RV].

(141) See Re CN-B, 2015 SKQB 279. A PSI must also be in a position to comply with criminal record and security checks, have a plan, and be financially able to parent a child. See Re LL-B, 2016 SKQB 237 at paras 23, 37, 64, 75.

(142) See Re CCAE, 2009 SKQB 308.

(143) See e.g. Re R(K), 2012 SKQB 336 (holding that a permanent committal order, unlike a custody order under the Divorce Act, had to be interpreted consistently with the CFSA, allowing for variation or termination of the order if in a child's best interests and if a parent recovered stability before a child was placed for adoption).

(144) Re SC QB, supra note 9, aff'd Re SC CA supra note 9.

(145) Re SC CA, supra note 9 at para 1.

(146) Re SC QB, supra note 9 at para 2.

(147) See ibid at para 3.

(148) Ibid at para 7.

(149) See ibid at para 8.

(150) Ibid at para 26.

(151) Re SC CA, supra note 9 at para 9.

(152) See ibid at paras 12, 19.

(153) See Children's Aid Society of Shelburne Community (County of) v C(I) and C(HR), 2001 NSCA 108 at para 45 [CAS of Shelburne v IC]. Bateman JA also noted that "the Cs are not simply roster parents but prospective adoptive parents who have had care of B.J.S. since birth": ibid at para 59.

(154) Supra note 9 at para 135.

(155) Supra note 104.

(156) New Brunswick (Minister of Family & Community Services) v SS, 2008 NBQB 34 at para 19 [NB v SS], cited with approval in New Brunswick (Minister of Social Development) v AH, 2015 NBC A 39 at para 19.

(157) See NB v SS, supra note 156 at paras 17, 19. Foster parents clearly owe a fiduciary duty to the children under their charge which is breached by placing their interests "ahead of the child's in a manner that abuses the child's trust": KLB, supra note 28 at para 49. See also M(M) v F(R), 52 BCLR (3d) 127, [1997] BCJ No 2914 (CA).

(158) Supra note 62.

(159) Ibid at paras 34-35.

(160) CFCSA, supra note 49.

(161) (1988), 12RFL(3d) 405, 48 DLR (4th) 469 [perteet v BC cited to DLR].

(162) SBC 1980, c 11, as repealed by the CFCSA, supra note 49.

(163) Perteet v BC, supra note 161 at 489.

(164) CFCSA, supra note 49, ss 54.01, 54.1. See e.g. BC (Director of Child, Family and Community Services) v BC (Public Guardian and Trustee), 2006 BCSC 649 at para 30 [BC v BC] (where Prowse J held that a foster parent may be a person to whom custody can be transferred but only upon an application by the director: "on the plain wording of these statutes foster parents are not included in the category of persons who can apply for custody of children who are in care of the Director" [emphasis in original]).

(165) See e.g. BC (Director of Family and Child Services) v PK, 2002 BCSC 1762 under s 56, CFCSA supra note 49, although the court would defer to the director in determining whether best interests were served through access.

(166) CFCSA, supra note 49, ss 54, 49, 39(4). Standing under s 39(4) cannot be granted retroactively. See Re AI, [1996] BCJ No 2774 (Prov Ct). I was unable to find a case granting foster parents standing at such an early stage.

(167) See BC v BC, supra note 164 at para 32. See also British Columbia (Director of Family and Child Services) v TK, 2003 BCSC 742 at para 21.

(168) 2000 MBQB 87 [MAF].

(169) See Man CFSA, supra note 79, s 14.

(170) MAF, supra note 168 at para 23.

(171) Ibid at para 24.

(172) Ibid at para 27. Little J noted that if the parents terminated the care agreement there would be no agency decision and no right to administrative review. See ibid at para 36. In Manitoba, third party claims to custody can only be made under the CFSA as other legislation is otherwise limited to spousal and parental claims.

(173) Man CFSA, supra note 79, s 77. Amendments to section 77 subsequently provided for notice of guardianship applications to agencies.

(174) See Re SC CA, supra note 9.

(175) Ontario CYFSA, supra note 27, ss 94(5), 101(4). See also LR v CAS of Metropolitan Toronto (1995), 21 OR (3d) 724, [1995] OJNo 119 (Gen Div); RL v CAS Niagara, supra note 91.

(176) Alberta CYFEA, supra note 27, ss 23(1)(d), 111(1). Sections 52-56 allow "any adult" to apply for a private guardianship order if the applicant has had continuous care of the child for at least three months and has the consent of the guardian although both of these requirements can be waived by a court if satisfied that a private guardianship order is in the best interests of a child.

(177) 2006 ABCA 404 [KVW].

(178) Ibid at para 22 [emphasis added].

(179) Ibid at para 24.

(180) Ibid at para 25.

(181) Ibid at para 26.

(182) See Bernstein & Reitmeier, supra note 45 at 67; NB v G(J), supra note 13 at para 76.

(183) See the text accompanying notes 188-190, below.

(184) See e.g. Children's Aid Society of the Regional Municipality of Waterloo v BA, 2005 ONCJ 220, Kent J; Fortowsky v Roman Catholic Children's Aid Society of Essex (County) (1960), 23 DLR (2d) 569, [1960] OWN 235 (CA); WN v CG, 2012 BCCA 149 at para 76 [WN v CG]. Under the Sask CFSA, supra note 31, s 37(8), the protective order is deemed an interim order subject to a further order of a superior court.

(185) See Nicholas Bala & Kate Kehoe, Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective (Ottawa: Department of Justice, 2015) at 16. State-funded counsel for parents has been found to be a Charter right in a child protection proceeding for a temporary order. See NB v G(J), supra note 13. However, there is no such right for foster parents and no such right generally in the family law context. For further discussion, see the text accompanying notes 244-54, below. In Saskatchewan, legal representation for children is provided only in child protection proceedings. See The Public Guardian and Trustee Act, SK 2018, c 42, s 6.3(2).

(186) See Bala & Kehoe, supra note 185 at 17.

(187) See Ontario CYFSA, supra note 27, ss 103, 116(6); CLRA, supra note 90. In DD v HD, the Court, although it issued a custody order under the Divorce Act, declined to decide whether child protection proceedings stayed such proceedings since section 57.2 (now section 103 of the CYFSA) only applied to stay proceedings under provincial legislation. See DD v HD, 2015 ONCA 409.

(188) The Children's Law Act, SS 1997, c C-8.2, s 12 [CLA]. See also Sask CFSA, supra note 31, s 66.

(189) 2017 SKQB 48 at para 65 [GL].

(190) Ibid at para 64.

(191) Supra note 88.

(192) Ontario CYFSA, supra note 27, Part VIII.

(193) 2016 BCCA 367 [LM v BC].

(194) Adoption Act, supra note 73, s 17(1).

(195) CFCSA, supra note 49.

(196) Supra note 73, ss 4(2), 13(3).

(197) See also RAS v Prince Edward Island (Department of Family and Human Services), 2017 PESC 33.

(198) CK v British Columbia (Ministry of Children and Family Development), 2003 BCSC 785 at para 46, Maczko J.

(199) LM v BC, supra note 193 at para 53, citing K v HMTQ (BC) & Others, 2003 BCSC 1248 at para 118.

(200) MM v TB, supra note 73 at paras 86, 56.

(201) See Letter from Marie-Ellen Turpel-Lafond to Honourable Suzanne Lanton, Attorney General of BC (21 September 2016), online (pdf): Representative for Children and Youth < publications/ ton_sep212016_re_metis_adoption_case.pdf>.

(202) Interestingly, when placing an Aboriginal child in care under s 71(3) of the CFCSA, the director is required to prioritize placement with the child's extended family or cultural community, or another Aboriginal family. Failing both of these options, the director can then, under s 71(2)(b), place the child in the same family unit as his or her siblings. See CFCSA, supra note 49, ss 71(3), 71(2)(b). This provision was not alluded to in the judgment, presumably because the court was dealing with an adoption rather than a placement in care.

(203) Supra note 184.

(204) RSBC 1996, c 128, now subject to the Family Law Act, SBC 2011, c 25 [FLA].

(205) See also British Columbia (Director of Child and Family Services) v K, 2003 BCSC 742 (holding that family law legislation cannot be used to vacate or vary a child protection order).

(206) CFCSA, supra note 49, s 33 (1).

(207) WN v CG, supra note 184 at para 46.

(208) See WN v CG, supra note 184 at paras 62, 65. As for current provisions, section 97.1 of the CFCSA allows the director to intervene in a proceeding under the FLA, supra note 204. The FLA now provides that a court may appoint ot terminate guardianship except in the case of a director who is a guardian under the Adoption Act or the CFCSA, s 51(1) and deems persons other than parents having permanent custody under sections 54.01(5) and 54.1 of the CFCSA to be guardians under the FLA, s 51(5). These provisions still allow parental custody to be challenged.

(209) WN v CG, supra note 184 at para 89.

(210) 2009 NLCA 42 [KP].

(211) RSNL, 1990 c C-13.

(212) See CYCPA, supra note 104.

(213) KP, supra note 210 at para 55.

(214) 2008 NLUFC 17.

(215) KP, supra note 210 at para 64.

(216) Ibid at para 63, citing KP v Eastern Regional Health Authority, 2009 NLUFC 21 at para 48. The child here was four years old and had spent 15 months in the home of the foster patents, where three of his half-sisters also resided.

(217) See The Adoption Act, 1998, SS 1998, c A-5.2, ss 4(1), 6. The minister's consent cannot be dispensed with.

(218) Supra note 188, s 6.

(219) See ibid, ss 12, 37. See also GL, supra note 189; DAWC v MWH, 2013 SKQB 313. For concerns related to the risk of disclosure of confidential information and a breach of parents' section 7 constitutional rights through consolidated proceedings as a result of a shift in onus, see New Brunswick (Minister of Social Development) v AH, 2015 NBCA 39. In New Brunswick, the child protection matter must proceed before the separate custody application.

(220) See SH v Saskatchewan (Minister of Social Services) (1995), 138 Sask R 184, [1995] SJ No 711. But see TLMW v CAM, 2011 SKQB 326 (where the father was investigated under the CFSA for sexual abuse of his children occurring after the parents separated and the mother obtained sole custody under the Divorce Act).

(221) But see the text accompanying notes 188-90, above.

(222) See DLC v GES, 2006 SKCA 79. See also SH v Saskatchewan (Minister of Social Services)(1995), 138 Sask R 184, [1995] SJ No 711.

(223) 2008 SKQB 399 [Schindel].

(224) Ibid at para 31.

(225) Ibid at para 32.

(226) 2015 SKQB 264 [CF]. For a discussion of issues related to commodification that are raised by Schindel and CF, see Wiegers, supra note 31.

(227) Supra note 140.

(228) Ibid at para 29.

(229) See CLA, supra note 188, s 8(a).

(230) 2001 SKQB 513 [MBD 2001]. See also MDB v Saskatchewan (Minister of Social Services), 2002 SKQB 308.

(231) MBD 2001, supra note 230 at para 8.

(232) Ibid at para 5.

(233) See ibid at para 83.

(234) 2006 SKQB 478.

(235) Ibid at para 15.

(236) Supra note 184.

(237) Supra note 210.

(238) Alberta CYFEA, supra note 27.

(239) SA 2003, c F-4.5 (FLA). In TW v Alberta, 2009 ABCA 25, grandparents were able to claim private guardianship pursuant to the FLA of children who were in the custody of the director under the CYFEA. Under the FLA ss 23-24, an applicant for guardianship must have had care and control of the child for more than 6 months prior to the application and have the guardian's consent but both these requirements can be waived if the court is satisfied that there are "good and sufficient reasons" to do so. The Alberta CYFEA previously required that an applicant have continuous care for three months prior to a hearing, a requirement that could not at the time of TW v Alberta be waived, whereas the FLA did allow for waiver of the residency requirement. If an application under the FLA had not been allowed, the practical consequence was that the grandparents could not act as guardians unless the Director agreed. Currently, under subsection 56(1.01) of the Alberta CYFEA, the court can waive the requirement if believed to be in the best interests of a child.

(240) 2011 ABCA 139 [RW v Alberta]. RW v Alberta involved the same parties as in TW v Alberta, supra note 239.

(241) See ibid at para 34.

(242) Ibid at para 35.

(243) Ibid at patas 36-37.

(244) Supra note 52. Claims under the equality provisions of section 15 have not been advanced on behalf of foster parents or, where advanced, have not been dealt with because of an absence of an evidentiary record.

(245) B(R), supra note 50 at para 83.

(246) Supra note 13 at pat a 61.

(247) Ibid at para 76, cited in T(J) v Newfoundland and Labrador (Manager of Child, Youth and Family Services, Zone E), 2015 NLCA 55 at para 8 [Nfld v JT]. Nfld v JT found that a prohibition on open permanent care orders or on conditions attaching to a permanent order (i.e. for access to the mother where there was a significant emotional bond between the mother and child and continued contact was in the child's best interests) infringed section 7 and was not saved under section 1. But see Catholic Children's Aid Society of Metropolitan Toronto v TS (1989), 60 DLR (4th) 397 at paras 36-38, 69 OR (2d) 189.

(248) See also Catholic Children's Aid Society of Toronto v MC, 2018 ONCJ 619, where a grandmother was granted funded counsel in child protection proceedings as an incident of the child's section 7 right to security. In this case, the Children's Society supported the foster parents' desire to adopt the child without parental rights of access and was voluntarily paying for their legal counsel, creating an unequal playing field that significantly affected the court's decision.

(249) Supra note 84.

(250) See ibid at para 72.

(251) See ibid at para 74.

(252) See the text accompanying notes 34, 157, above. See also Wiegers, supra note 31.

(253) (1988) 59 Alta LR (2d) 289 at para 48, 14 RFL (3d) 55 (QB) [Peters]. See also MacLaurin & Bala, supra note 7 at 136. In SBM v Children's Aid Society of London & Middlesex, the foster parents argued section 7 but the claim was not dealt with ([1995] OJ No 4078, [1995] 19 RFL (4th) 327). Similarly, in LM v BC the claim that the Adoption Act contravened sections 7 and 15(1) of the Charter had not been advanced in a prior petition and was found to be res judicata (supra note 193).

(254) See Peters, supra note 253 at para 52.

(255) 2016 BCSC 1788 at para 41.

(256) See LM v British Columbia (Child, Family and Community Services, Director), [2016] SCCA No 394 at para 5, [2016] CSCR No 394. The appeal by the foster parents was thereafter abandoned.

(257) See Casimel v Insurance Corp of British Columbia (1993), 106 DLR (4th) 720, 82 BCLR (2d) 387 (CA) [Casimel v ICBC] (identifying customary adoption as an aboriginal right that neither the provincial government in British Columbia nor federal laws had clearly qualified or abrogated). In Corrigan Estate v Episkenew, 2013 MBQB 77 at para 20 [Re Corrigan Estate], Menzies J also held that customary adoptions, if in existence as of 1982, were constitutionally protected under section 35(1). Customary adoptions have been recognized by statute in Nunavut, Northwest Territories, British Columbia and most recently, Quebec.

(258) See Re Corrigan Estate, supra note 257 at para 4.

(259) See Re Tagornak (1983), 50 AR 237, 1 CNLR 185 (NWTSC) [Tagornak]. According to Re Deborah E4-789 (1972), 28 DLR (3d) 483, [1972] 5 WWR 203 (NWTCA), the custom must also have continuously extended back in living memory. See also-Re K's Adoption Petition (1961), 32 DLR (2d) 686, 67 WWR 669 (NWT Terr Ct); Re Beaulieu (1969), 3 DLR (3d) 479, 67 WWR 669 (NWT Terr Ct); Re Wah-Shee (1975), 57 DLR (3d) 743, 21 RFL 156 (NWTSC); McNeil v MacDougal (1999), 256 AR 289, [2000] 2 WWR 729 (Sut Ct); Manychief v Poffenroth (1994), 164 AR 161, 25 Alta LR (3d) 393 (QB); Re BC Birth Registration No 1994-09-040399(1998), 45 RFL (4th) 458, 4 CNLR 7 (BCSC) [Re BC Birth Registration No 1994]; Prince v Canada, 2000 BCSC 1066; Casimel v ICBC, supra note 257.

(260) See Re BC Birth Registration No 1994, supra note 259 at para 15.

(261) See e.g. SKK v JS, [1999] NWT No 94, 1999 Carswell NWT 95 (SC) at para 30, where Schuler J held that a support obligation on the part of a biological parent may survive a customary adoption depending on the custom and statutory language. See also Cindy Baldassi, "The Legal Status of Aboriginal Customary Adoption Across Canada: Comparisons, Contrasts, and Convergences" (2006) 39:1 UBC L Rev 1 at 15-16; Jeannine Carriere, "Lessons Learned from the Yellowhead Tribal Services Agency Open Custom Adoption Program" (2015) 10:1 First Peoples Child & Family Rev 39 at 42, 45.

(262) See Re Corrigan Estate, supra note 257 at paras 36-37.

(263) See Re Tagornak, supra note 259 at para 2.

(264) See e.g. Office of the Representative for Children and Youth, "Finding Forever Families: A Review of the Provincial Adoption System" (19 June 2014) at 36, online (pdf): Office of the Representative of Children and Youth <>.

(265) Supra note 60.

(266) Supra note 9.

(267) See the text accompanying notes 50-56, above.

(268) See the text accompanying note 29, above.

(269) See e.g. RP v Alberta CA, supra note 9; AM v Valoris, supra note 122; CAS of Shelburne v IC, supra note 153.

(270) Supra note 128. See the text accompanying notes 134-38, above.

(271) See Sinclair, supra note 6.

(272) See e.g. TG v NS, supra note 9.

(273) See e.g. RP v Alberta CA, supra note 9.

(274) See supra note 12, but note that First Nations child welfare experts have argued for the inclusion of funding commitments, among other changes to the Bill. Sec e.g. Naiomi Walqwan Metallic et al, "Special Report: An Act Respecting First Nations, Inuit and Metis Children, Youth and Families: Does Bill C-92 Make the Grade?" online: Yellowhead Institute <>. Increased funding has been required as a result of the Tribunal's decision in Caring Society, supra note 12.

(275) Numerous reports have called for both greater control by Indigenous communities over child welfare and a greater emphasis on prevention. See Ontario, Ministry of Child and Youth Services, Report on the 2015 Review of the Child and Family Services Act (Toronto: Ministry of Children and Youth Services, 2015) at 10, 23-24, online: Ministry of Child and Youth Services <>; One Vision One Voice, supra note 5; Saskatchewan Children's Advocacy Office, "Annual Report 2016" (25 April 2017), online (pdf): Saskatchewan Children's Advocacy Office <>; Cindy Blackstock et al, "Wen:de: We are Coming to the Light of Day" (2005) at 18-21, online (pdf): Child Welfare Research Portal <>; Honourable Ted Hughes, Commissioner, "The Legacy of Phoenix Sinclair: Achieving the Best for All our Children" (2013) at 26, 31-32, online (pdf): Phoenix Sinclair Inquiry <>; Cynthia Wesley-Esquimaux, "Reforming First Nations Child Welfare: Summary of Engagement" (September 2017), online: Government of Canada <>; Aboriginal Children in Care Working Group, "Aboriginal Children in Care: A Report to Canada's Premiers" (July 2015), online (pdf): Canada's Premiers <>; Grand Chief Ed John, "Indigenous Resilience, Connectedness and Reunification--From Root Causes to Root Solutions" (November 2016) at 71, online (pdf): First Nations Summit < /Final-Report-of-Grand-Chief-Ed-John-re-Indig-Child-Welfare-in-BC-November-2016.pdf>.

(276) See e.g. CF, supra note 226; RW v Alberta, supra note 240.

(277) 20 November 1989, 1577 UNTS 3, art 12 (entered into force 2 September 1990).

(278) See e.g. Justine Hunter, "Defending the Indigenous Newborns of B.C.", The Globe and Mail (10 March 2018), online: <>; Clare Huntington, "The Child-Welfare System and the Limits of Determinacy" (2014) 77:1 Law & Contemp Probs 221 at 233-38.

(279) See e.g. Thompson, supra note 49.

(280) S(D), supra note 38 at para 18, Nasmith J.
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Author:Wiegers, Wanda
Publication:University of British Columbia Law Review
Geographic Code:1CANA
Date:Jun 1, 2019

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